OCCASIONAL PAPER
The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru A legal study
Patrick Wieland Fernandini Ronnie Farfan Sousa
OCCASIONAL PAPER 129
The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru A legal study
Patrick Wieland Fernandini Estudio Echecopar Ronnie Farfan Sousa Estudio Echecopar
Center for International Forestry Research (CIFOR) Occasional Paper 129
© 2015 Center for International Forestry Research
Content in this publication is licensed under a Creative Commons Attribution 4.0 International (CC BY 4.0), http://creativecommons.org/licenses/by/4.0/
ISBN 978-602-1504-99-4 DOI: 10.17528/cifor/005649
Wieland Fernandini P and Sousa RF. 2015. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru: A legal study. Occasional Paper 129. Bogor, Indonesia: CIFOR.
Photo by Peter Cronkleton/CIFOR
CIFOR Jl. CIFOR, Situ Gede Bogor Barat 16115 Indonesia
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Any views expressed in this publication are those of the authors. They do not necessarily represent the views of CIFOR, the editors, the authors’ institutions, the financial sponsors or the reviewers. Contents
Acknowledgment v
Introduction vi
1 Overview of the different levels of government 1 1.1 The decentralization process in Peru 1 1.2 The autonomy of local and regional governments 1 1.3 National, regional and local government powers 2 1.4 Financial resources throughout the three government levels 6 1.5 The stages of the decentralization process 6 1.6 Public participation mechanisms 8 1.7 Progress of decentralization 11
2 Mechanisms for distributing financial resources 13 2.1 Forest fees and other royalties 13 2.2 Payment for Ecosystem Service (PES) schemes 14
3 Description of roles of different government levels in land use decision/ policy arenas affecting forests 17 3.1 Land use planning/Ordenamiento Territorial 17 3.2 Defining land vocation and conversion rights 21 3.3 Titling of Agricultural Lands 21 3.4 Titling of native lands with forest vocation 26 3.5 Government ownership and administration of land 26 3.6 Natural protected areas 29 3.7 Mining Concessions 34 3.8 Hydrocarbon Rights 39 3.9 Forestry Concessions 45 3.10 Oil Palm 49 3.11 Road infrastructure and concessions 49
4 Bibliography of legislation cited 53
Appendices 55 1 Distinctions between the powers of provincial and district governments 2 Referential list of public participation mechanisms in environmental assessment List of figures and tables
Figures 1 The stages of the decentralization process 8 2 The approval process for hydrocarbon agreements 44
Tables 1 Distribution of Powers and Responsibilities Related to Land Use Planning 18 2 Distribution of Powers and Responsibilities Related to Defining Land Vocation and Conversion Rights 22 3 Distribution of Powers and Responsibilities Related to Titling of Agricultural Lands 25 4 Distribution of Powers and Responsibilities Related to Titling of Native Lands with Forest Vocation 27 5 Distribution of Powers and Responsibilities Related to Natural Protected Areas 30 6. Distribution of Powers and Responsibilities Related to Mining Concessions 36 7 Distribution of Powers and Responsibilities Related to Hydrocarbon Rights 40 8 Distribution of Powers and Responsibilities Related to Forestry Concessions 46 9 Distribution of Powers and Responsibilities Related to Road Infrastructure and Concessions 50 Acknowledgment
We acknowledge the contributions of the Comparative Study on REDD+ is supported following people: Lorena Zuazo, Diana by the Norwegian Agency for Development Lizárraga, Juan Manuel Casalino, Claudia Cooperation (Norad), Australian Aid, the Pacora, Alexandra Carranza, Natalia Zúñiga, Department for International Development Oscar Ballón and Mary Cielo Núñez. We also (DFID) of the United Kingdom, the thank Pablo Peña, Jazmín Gonzales Tovar, European Commission (EC), and the Anne Larson, Ashwin Ravikumar and Laura CGIAR Research Program on Forests, Trees Kowler for their useful reviews. CIFOR’s Global and Agroforestry. Introduction
This report was commissioned under CIFOR’s for public participation in decentralized Global Comparative Study on REDD+, as part governance spaces, and indicates challenges to the of a research project on multilevel governance decentralization process. and carbon management at the landscape scale. Its purpose is to describe the distribution of The following section outlines the sources of powers and responsibilities related to land use, revenue available to different levels of government, forests, ecosystem services and, by extension, including an outline of new legislation around REDD+ among levels and sectors of the Peruvian payments for ecosystems services. government. To that end it reviews laws dealing explicitly with different sectors that affect land The final section details the specific distribution use and also decentralization. It is intended as a of powers and areas of responsibility related reference for researchers and policy makers working to particular land use sectors across levels and on land use issues in Peru, and is therefore largely between offices within levels. These include land descriptive in its content. use planning; defining of land use vocation; titling of agricultural lands; titling of native The first section describes decentralization in lands with forest vocation; and governmental Peru. It discusses the recent legal history of ownership and administration of lands, decentralization, distinguishing powers held natural protected areas, mining concessions, exclusively by one level of government and those hydrocarbons, forest concessions, oil palm, and shared among multiple levels. It also describes roads and infrastructure concessions. For each of the stages of the decentralization process, these processes or sectors, an overview of which covering the sources of revenue available to the government level or division is responsible for different government levels and mechanisms what is provided. 1 Overview of the different levels of government
1.1 The decentralization process The decentralization process is also supposed to in Peru democratize the decision-making process through public participation mechanisms. Regional and The 1993 Peruvian Constitution establishes local governments are therefore required to promote that Peru is a decentralized, unitary State1 with public participation in the formulation, discussion three levels of government2: national, regional and consensus-creation of budgets and development and local (which include provinces, districts and plans, as well as in public management.5 municipal governments).
Decentralization in Peru is an ongoing process 1.2 The autonomy of local and designed to occur progressively through phases regional governments in an orderly fashion. Its aim is to ensure an appropriate distribution of powers among Autonomy refers to the capacity of certain government levels, requiring the transfer of entities to make decisions and approve their resources from the national government to sub- own legal norms without being subject to the national governments.3 intervention or authorization of other entities. Peru, as a decentralized State, distributes its powers According to Law No. 27783, the among all government levels, establishing each Decentralization Law, the objective of the one’s autonomy. decentralization process is to achieve Peru’s comprehensive, harmonious and sustainable For the full exercise of powers and faculties, the development. It aims at a balanced division of Peruvian Constitution6 has granted political, powers and functions among the three government economic and administrative autonomy to the levels. Decentralization is legally described further regional and local governments to regulate and as a permanent policy that applies to the entire manage the matters within their own range of State and should ensure a fairer and more equitable powers. In this regard, the Decentralization Law7 country in the long term. has prescribed the following three dimensions of autonomy: Other objectives of the decentralization process are: • Political autonomy is the power to (a) establish (a) political representation of the national, regional policies and rules regarding the matters within and local government agencies; (b) equitable their purview and (b) approve and issue their redistribution of state funds; (c) administrative own laws and regulations. simplification of formalities in all branches of • Economic autonomy is the power to (a) create, public administration; (d) public participation collect and manage their income and earnings in all forms of organization and social control; and (b) approve their own institutional budgets. and (e) sustainable use of natural resources and • Administrative (or regulatory) autonomy is improvement of environmental quality.4 the power to (a) organize internally and (b) determine and regulate the public services within their purview. 1 Article 43 of the Constitution. 2 Article 189 of the Constitution. 5 Article 17 of the Decentralization Law. 3 Article 188 of the Constitution. 6 Articles 191 and 194 of the Constitution. 4 Article 6 of the Decentralization Law. 7 Article 9 of the Decentralization Law. 2 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
Furthermore, the Decentralization Law8 establishes enforce the Constitution, international treaties, three types of powers: laws and other legal regulations, as well as court • Exclusive powers are those whose exercise judgments and the decisions of the National corresponds exclusively to each level Elections Board (Jurado Nacional de Elecciones); of government. (b) conduct foreign policy and international • Shared powers are those involving two or more relations; (c) approve the general policy of the levels of government, where the law indicates government and (d) issue extraordinary measures the specific role and responsibility of each level. through binding emergency decrees.13 • Delegated powers are those that one level • The Council of Ministers is composed of ministers of government delegates to another level, appointed by the president of the republic renouncing its decision-making powers. and chaired by the president of the Council of Ministers. Its main responsibilities are to Powers are assigned and delegated according to coordinate and assess government policies, make the subsidiarity principle. This principle states that decisions regarding matters of public interest and “the government closest to the people is best suited ensure the welfare of civil society.14 to exercise governance powers and functions, • The president of the Council of Ministers is thus the national government should not assume responsible for coordinating the national and roles that may be more efficiently fulfilled by sectoral policies of the executive branch. It regional governments, and regional governments also coordinates with the other branches of the in turn should not assume roles that local State, constitutional bodies, regional and local governments can fulfill, avoiding redundancy and governments and civil society.15 The president overlapping powers.”9 of the Council of Ministers is appointed by the president of the republic. The aforementioned principle is complemented • The Ministries are agencies of the executive by the specificity principle (taxatividad) and branch that are created in accordance with the the residuary clause. The specificity principle government sectors of the Peruvian State.16 stipulates that powers may be explicitly designated Ministers are in charge of their ministries, which to regional and local governments, while the are responsible for directing and managing the residuary clause establishes that those powers public matters under their purview. Ministers that are not explicitly ascribed to the regional or are appointed by the president of Peru. The local government remain within the scope of the ministries’ main functions are to: (a) formulate, national government.10 plan, direct, implement, monitor and evaluate their policies as sectoral authorities, (b) approve the regulatory provisions within the scope 1.3 National, regional and local of their economic sector and (c) coordinate government powers11 the legal defense of the entities of their government sector.17 1.3.1 The national government
The national government exercises its powers through the executive branch, which is made up of 13 Article 8 of the Executive Power Law. 12 the following entities: 14 Article 16 of the Executive Power Law. • The President of the Republic is elected through 15 Article 17 of the Executive Power Law. general elections every five years. S/he may not be re-elected for consecutive periods. His/ 16 Currently, there are 15 ministries: the Presidency of the Council of Ministers; Ministry of Foreign Affairs; Ministry of her principal functions are to: (a) observe and Defense; Ministry of Economy and Finance; Ministry of the Interior; Ministry of Justice; Ministry of Education; Ministry of Health; Ministry of Agriculture and Irrigation; Ministry of 8 Article 13 of the Decentralization Law. Labor and Employment Promotion; Ministry of Production; Ministry of Foreign Trade and Tourism; Ministry of Mines and 9 Article 14.2 of the Decentralization Law. Energy; Ministry of Transport and Communications; Ministry 10 Constitutional Court Judgment No. 0020-2005-PI/TC. of Housing, Construction and Sanitation; Ministry of Women and Vulnerable Populations; Ministry of the Environment; 11 A summary table regarding exclusive and shared Ministry of Culture and Ministry of Development and Social national, regional and local powers has been included as Inclusion. The following link shows the names of the Ministers Annex 1. of State: http://www.presidencia.gob.pe/ministros. 12 Article 2 of Law No. 29158, the Executive Power Law. 17 Article 23 of the Executive Power Law. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 3
Other public entities of the executive 1.3.2 Regional governments branch include: • Public Agencies: entities of the executive branch Regional governments are elected by popular that are associated with a particular ministry vote and are organized following the political and have responsibilities of a national scope. "departments" in order to organize and conduct These public agencies may be: (a) public regional public management. According to Law executor agencies or (b) specialized public No. 27867, the Regional Governments Law, the agencies (which are classified in regulatory structure of a regional government is made up of agencies and specialized technical agencies).18 the following bodies: • Committees of the Executive Branch: agencies • Regional Council: The regional government’s created to comply with the functions of policy-making and supervisory body is monitoring, control, proposals or issuing composed of regional councilors elected reports (e.g. Multisectoral Committee for the by direct vote for a period of four years. Its Implementation of the Open Government primary functions are to: (a) approve, amend or Action Plan / Comisión Multisectoral para repeal the laws under the purview of regional la Implementación del Plan de Acción del government; (b) approve the creation, sale, Gobierno Abierto). disposition and concession of regional property; • Special programs and projects: created in critical (c) propose the creation, modification or circumstances to implement a policy specified removal of regional tax22 and (d) propose to within the purview of the entity to which the National Congress legislative initiatives on they belong. matters within its purview. • Social Security Entities: such as social health • Regional President: S/he is the regional insurance (ESSALUD). government executive body and may be re- • State-owned companies. In accordance with the elected for consecutive terms. The regional Constitution,19 business activities performed by president is elected by direct vote along with the State must be authorized by a law passed by the vice president for a term of four years. the Congress and only when justified by public S/he manages the regional government interest (i.e. Electroperú S.A.). and proposes and implements the regional government budget. The national government holds the following • Regional Coordination Council: It is the regional exclusive powers:20 government’s coordinating and advisory entity • Preparation of national and sectoral policies with local governments and civil society. It is • Defense, national security and armed forces made up of the region’s provincial mayors and • Justice representatives of civil society organizations. • Currency, banking and insurance • Taxation and national public debt The main exclusive powers of the regional • Regulation of public services under its government are to23: responsibility and the public infrastructure of • Plan the integral development of its region anational scope. • Adopt its internal organization and institutional budget The Executive Power Law21 states that the exercise • Promote and implement public investment at of shared powers is described in several documents the regional level including the Peruvian Constitution, the • Sign accords and agreements with other regions Decentralization Law, the Regional Governments for the promotion of economic, social and Law and the Municipalities Law, as well as in environmental development the organizational laws of the ministries and executive entities.
18 PROINVERSION is an example of a Peruvian public 22 According to Article 38 of the Decentralization Law, agency. the Executive Branch proposes to National Congress the approval of regional taxes, which will be managed by the 19 Article 60 of the Constitution. regional government and considered a direct account of such 20 Article 26 of the Decentralization Law. governments. 21 Article 5 of the Executive Power Law. 23 Article 36 of the Decentralization Law. 4 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
• Enforce laws and regulations related to matters The basic structure of local governments includes under its purview the following entities: • Propose legislative initiatives to the • The Municipal Council is formed by the National Congress mayor and the number of councilors set • Promote the sustainable use of forest resources by the National Elections Board. It is the and biodiversity. policy-making and supervisory body of local government. Its main functions are to: (a) Its most important shared powers are the approve, amend or repeal laws within the following24: purview of local government; (b) create, modify, • Education and public health delete or exempt from contributions, taxes, • Promotion, management and regulation of licenses and rights, under the purview of local economic and productive activities in the region government and (c) supervise the management in sectors such as agriculture, fishing, industry, of local government officials.26 trade, tourism, energy, hydrocarbons, mining, • Mayor's Office: It is the executive entity of transport, communications and environment local government. The mayor, as the legal • Sustainable management of natural resources representative of local government and its and improvement of environmental quality highest administrative authority, is elected by • Preservation and management of the region’s direct suffrage for a term of four years. The natural protected areas mayor may be re-elected for a consecutive • Diffusion of the region’s culture term.27 • Facilitation of public participation (dialogue • Local coordination bodies: The Local between public and private interests at all levels) Coordination Council (provincial or district) • Drafting, development and implementation of and the Neighborhood Correspondents programs to sell ecosystem services from natural Meeting are in charge of promoting public forests or protected areas participation mechanisms.28 • Promotion of the implementation of payment for ecosystem service (PES) schemes pursuant The main exclusive responsibilities / powers of local to the decentralization process framework governments are the following29: • Raising of economic funds and their transfer to • Plan and promote urban and rural development the contributors of ecosystem services to foster • Manage and regulate public services under the implementation of PES schemes. their authority • Approve their internal organization and 1.3.3 Local governments institutional budget • Approve and promote mechanisms Local governments are elected by public vote and for public participation under local constitute the core entities of the State’s territorial government management organization in accordance with Law No. 27972, • Enforce the laws and regulations of matters The Municipalities Law. Local governments are under their authority the immediate channels of participation in public • Propose relevant legislative initiatives to the affairs given that they occupy the lowest level of National Congress. government. The term “local government” refers to both provincial and district governments, with The most important shared powers are the districts housed within provinces.25 This section following30: refers to both levels collectively. In practice, their • Education and public health functions differ somewhat, as will be shown in later • Citizen security sections of this report.
24 Ibid. 26 Article 9 of the Municipalities Law. 25 The Provincial Municipality has jurisdiction over the 27 Article 20 of the Municipalities Law. territory of the province and the District Municipality has 28 Article 100 of the Municipalities Law. jurisdiction over the territory of the district. It is relevant to 29 Article 42 of the Decentralization Law. note that the district territory is physically smaller than the provincial one. 30 Article 43 of the Decentralization Law. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 5
• Conservation of archaeological and • To strengthen the dialogue among the levels historical monuments of government • Public transport, movement and urban transit • To assist in the coordination and articulation • Housing and urban renewal of national, sectoral, regional and local policies, • Management of social programs and promote joint actions among the different • Solid waste management government levels. • Promotion of PES schemes pursuant to the decentralization process framework Intergovernmental commissions, in contrast, are • Raise funds and transfer them to the organized by sectoral ministries. Each sector contributors of an ecosystem service to foster works in coordination with regional and local the implementation of PES schemes. governments to organize the exercise of shared powers by defining their respective roles and According to the Organizational Municipalities responsibilities. In this way, these commissions Law, local government powers are distributed to ensure compliance with public policies relating to the provincial and district governments based on the powers the three government levels share. their jurisdiction. In this regard, certain functions established in the Organizational Municipalities Peru’s legal system provides for the possibility Law are under the purview of provincial of creating associations by joining two or more governments while others are under the purview of regional or local governments for providing public districts, as detailed in Appendix 1 in accordance services, investing in or co-financing the execution with article 79 of the aforementioned law. of works to promote integration, regional or local development and participation in society. Law No. 1.3.4 Levels of government coordination 29768 regulates regional associations while Law No. 29029 regulates municipal associations,34 Given that Peru is both unitary and decentralized, coordination is necessary between the three At the regional or local level, the associations (a) levels of government. The Intergovernmental promote and implement projects that exceed the Coordination Council / Consejo de Coordinación investment capacity of individual jurisdictions; Intergubernamental (CCI) is in charge of broader (b) develop, promote and implement projects coordination between levels in the service of with domestic and foreign entities that promote decentralization, while the organization and economic, productive and social development and management of the shared powers are in charge of (c) develop and implement technological research the intergovernmental commissions. plans in partnership with universities, colleges and other educational institutions. The CCI, created in 2007 by the Executive Branch Law, is an institution subject to the presidency of Furthermore, the Decentralization Law created the Council of Ministers. Its purpose is to issue the National Council of Decentralization (CND) policy recommendations and implement strategies to guide the decentralization process. The CND and actions that guarantee and strengthen the board of directors is composed of two mayors, decentralization process. The CCI consists two regional presidents, two representatives of of members representing the three levels of the Ministry of Economy and Finance and two government.31 representatives of the presidency of the Council of Ministers. The main functions of the CCI are the following32: • To arrange and promote policy However, in 2007 this entity became the recommendations, strategies and actions to Decentralization Secretariat, which is attached ensure protection of the principles33 guiding the to the presidency of the Council of Ministers. Its decentralization process, as well as achievement main functions are developed in article 39 of the of its purpose ROF of the presidency of the Council of Ministers
31 Article 4 of Supreme Decree No. 079-2009-PCM. 34 Examples of regional and local associations are the 32 Article 3 of Supreme Decree No. 079-2009-PCM. Regional Association of Exporters of Lambayeque and the 33 Subsidiarity, selectivity, proportionality, provision and Association of Urban and Rural Municipalities of Peru, powers distribution. respectively. 6 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
approved through Supreme Decree No. 063-2007- 1.4 Financial resources throughout the PCM, which includes the following: three government levels • To lead and evaluate the powers and resource transfers to regional and local government According to the Decentralization Law, financial • To promote regional and local integration resources are assigned to each government and strengthening depending on its decentralization level. In this • To strengthen coordination between the regard, the financial sources for the national, different government levels within the regional and local governments are the following: framework of dialogue and deliberation • To approve and propose regulations for the 1.4.1 National government resources decentralization process. The national government’s revenues are obtained 1.3.5 Conflicts of powers mainly from taxes, such as the income tax, value- added tax, selective consumption tax, financial In a decentralized State such as Peru, there may transactions tax and temporary tax on net assets, as be cases in which different government levels hold well as municipal taxes (property tax, alcabala excise overlapping powers. In such cases, there may be tax, vehicle property tax) and municipal arbitrios “conflicts of powers.” Such conflicts are adjudicated tax (for public cleaning, municipal police and parks by the Constitutional Court. and gardens).
The purpose of this judicial process is to protect the 1.4.2 Regional government resources37 division of powers. Conflicts may be: (a) positive, when two constitutional entities (such as two Regional government revenues are obtained from: regional governments) consider themselves entitled • Assets and real estate to exercise the same function; and (b) negative, • Specific contracts when each of two entities considers the other to be • Taxes created in its favor entitled to exercise a function. • The economic rights generated by privatizations and concessions they grant and those they receive The judgment issued by the Constitutional Court from the national government at the end of the judicial process determines which • The resources of the regional compensation fund entity may or must exercise a particular function. • The resources distributed by monthly fees • Their own income On the other hand, the Peruvian Constitutional Court35 has established that conflicts of powers 1.4.3 Local government resources38 may arise between: 1. The executive power and one or more regional Local government revenues are obtained from: or local governments • Their own income, which includes taxes, fees and 2. Two or more sub-national governments other items 3. Two or more constitutional entities or other • Intergovernmental transfers from the national state bodies. government to the decentralized governments, which are, among others, the "canon" from the The court also established that the dispute exploitation of natural resources, the municipal should concern powers arising directly from the compensation fund, mining royalties and the Constitution or corresponding laws. Camisea development fund.
Notwithstanding the above, the ad hoc procedure is the unconstitutionality judiciary process36 in cases 1.5 The stages of the decentralization where the conflict concerns a power stated in a rule process with a lower rank (i.e. a law issued by the National Congress or ordinances issued by regional and Article 188 of the Constitution establishes that local governments). the decentralization process be carried out in phases, in a progressive and orderly way, and in 35 Constitutional Court Judgment No. 0013-2003-CC/ TC. 37 Article 37 of the Decentralization Law. 36 Article 110 of the Constitutional Process Code. 38 Article 46 of the Decentralization Law. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 7
accordance with criteria that allow an adequate mechanisms to conduct transfers. At the same transfer of powers and resources from the national time, the regional governments define what they government to the regional and local governments. will receive.
Five phases are described: (a) preparatory; (b) Second stage. Consolidation process installation and organization of regional and This stage was modified by Law No. 29379 local governments; (c) consolidation of the dated June 13, 2009. In this stage, a national regionalization process; (d) transfer and reception regionalization plan should be approved by a of sectoral powers and (e) transfer and reception of supreme decree. This plan shall be published with sectoral powers regarding education and health. the proposals and additions of the regions.
While the Regional Government and Third stage. Transfer and reception of Municipalities Laws set forth certain powers for sectoral powers regional and local governments, these powers may In this stage, the transfer of powers, sector-specific not be executed until they are transferred through functions and responsibilities are transferred from specific regulations. the national government to the regional and local levels. Once the transfers are conducted, the Accordingly, Article 5 of the Executive Power Law decentralized governments are able to exercise sets forth the following rule: their powers. The intent is that they will exercise them in accordance with the needs of their The transfer of powers, resources and functions constituents in order to promote the welfare of of the Executive Branch entities to the regional their localities. and local governments is made pursuant to the rules of decentralization, pointing out Powers transferred during this stage relate to the responsibility of each government level agriculture, fisheries, industry, agro-industry, in each area and the appropriate forms of trade, tourism, energy, mining, transportation, coordination, as well as rationalizing the roles communications, environment, housing, and responsibilities of those entities. sanitation, natural resource sustainability, roads and transit, tourism, conservation of The stages of the decentralization process are archaeological and historical heritage, culture, and summarized below. recreation and sports.
Preparatory stage The powers that are subject to any transfer shall This stage was intended to complete the regulatory be included in the annual plan for transfer of framework and operations of the decentralization sectoral responsibilities, approved by a supreme process. In this phase, new instruments required decree issued by the presidency of the Council to ensure a sustainable decentralization process of Ministers. The aforementioned annual plan were designed and tested. Such instruments shall be developed based on the sectoral plans include participatory budgeting, management submitted by each national government sector strengthening tools and information systems. and should include the sectoral functions that are intended to be transferred, as well as the This stage was foreseen to take eight months human and budgetary resources linked to each of from the enactment of the Decentralization Law these powers. and may occur concurrently with the first stage described below. Fourth stage. Transfer and reception of powers regarding health and education First stage. Installation and organization of The transfer of these functions was left to the regional governments last stage, as they are the more socially sensitive This stage began with the installation of the sectors. They are also politically more complicated new regional governments, which had to be because they involve many public employees. prepared to receive new powers. In this stage, the national government establishes the powers and The abovementioned stages are summarized in responsibilities that will be transferred and the Figure 1. 8 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
First stage: Fourth stage: Second stage: Third stage: Installation and Transfer and reception of Prepatory Consolidation of the Transfer and reception organization of sectoral competences Stage process of of sectoral Regional and Local regarding education and Regionalization competences Governments health
Figure 1. The stages of the decentralization process
1.6 Public participation mechanisms Furthermore, the rights of citizen control are the following: 1.6.1 Public Participation mechanisms in • Recall (revocatoria de autoridades), which the decentralization process is the right of citizens to dismiss mayors, local government council members, Political participation, wherein citizens contribute regional authorities and judges chosen by to decision-making processes, is a basic principle popular election. of democracy. Participation requires mechanisms • Removal (remoción de autoridades), which is the that allow citizens to play an active role in right of citizens to remove authorities appointed governance. Law No. 26300, Law of Public by the national or regional government in the Participation Control, distinguishes the following regional, departmental, provincial or district rights of participation associated with different jurisdiction. This occurs when more than legal initiatives: 50% of the citizens of an electoral or judicial • Constitutional reform initiative, which requires a jurisdiction request it. minimum of 0.3 % of the national electorate • Demand for accountability (demanda de rendición • Law initiative, which requires a minimum of de cuentas), which is the mechanism by which 0.3% of the national electorate citizens have the right to challenge authorities • Referendum, which is the right of citizens regarding the use of resources and public budget to speak on legislative matters consulted in (the authority is obliged to answer). accordance with the Constitution. It may be requested by a number of citizens not fewer Political participation is closely linked to than 10% of the national electorate.39 decentralization, as governments closer to citizens can offer more possibilities for participation 39 Article 39 of Law No. 26300. The Referendum will in governance. proceed in the following cases: (a) the total or partial reform of the Constitution, in accordance with Article 206; (b) the In this regard, Article 17 of the Decentralization approval of laws, regional rules and municipal ordinances; Law obliges the decentralized governments to (c) the disapproval of laws, legislative decrees and emergency promote citizen participation in the formulation, decrees, as well as the rules referred to in the preceding paragraph and (d) the matters referred in Article 190 of the discussion and conclusion of their development Constitution, according to special law. plans and budgets. It also establishes that, The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 9
in addition to legal initiatives and control rights Specifically, citizens have the right to “true, described above, participation is channeled current, accurate and complete” information, so through the consultation, coordination and a false and partial delivery of information will monitoring arenas established by local and not satisfy this right. For that reason, the public regional governments. entity must provide “the information requested in reasonable terms, which means that it shall The following important legal mechanisms for be true, complete, clear and up to date.”41 participation exist: Thus, the right of access to public information • Accountability hearings are held by regional is an “instrumental right” because through its and local authorities with the members of the exercise it allows the exercise of other personal Coordination Council to inform the population rights: to participate in order to compel about regional and local governance. In the authorities to report on the use of public case of the regional governments, Article 24 of funds; to ensure a healthy environment by the Regional Governments Law states that they allowing the public to obtain an environmental are obliged to hold at least two accountability impact study; and freedom of speech, in which hearings per year. expressing an opinion requires having enough • Participatory Development Plans (PDC) are information, among other things. planning tools developed through participatory • Public Hearings (“audiencia pública")42: through processes that constitute guides for long- these hearings citizens have the opportunity term management. They must be oriented to participate in the implementation of to coordinating resources and individual and public policies of the different government institutional efforts. They establish the criteria levels. In accordance with Article 182 of the that must guide the initiatives and investments General Law of Administrative Procedure, the of various economic and institutional actors administrative rules provide that invitations to involved. They therefore serve as guides for public hearings are an essential formality for the formulating regional and local policy. effective participation of third parties43 when • Access to Public Information is a right recognized the issue at hand is likely to affect the rights or in Article 2.5 of the Peruvian Constitution. interests of unspecified persons especially with This right entitles citizens to search for and respect to environment, consumer rights and obtain public state information, except for urban planning. that which compromises personal privacy or • Participatory Budgeting: Article 199 of the is specifically excluded by law or for national Constitution states that regional and local security reasons. Article 10 of Law No. 27806, governments must “formulate their budgets Law of Transparency and Access to Public with the participation of the population and Information, thus establishes that any citizen are accountable for their implementation, may access any non-confidential information annually…in accordance with the law.” Law that has been generated or obtained by a public No. 28056, the Participatory Budget Law, entity. The law also specifies that citizens have precisely defines the participatory budget the right to access information about public process as a mechanism to strengthen civil state- investment projects, including their budgets society relations, by which priorities are defined and costs. Sub-national governments are obliged on the actions to be implemented by local to make available online information that is government with the participation of organized under their purview. society, creating commitments on the part of all This right of access to public information has a the agents. positive and negative dimension. In accordance with the Peruvian Constitutional Court,40 (a) the positive dimension of this right compels the public entities to report; and (b) the negative dimension requires that the information 41 Constitutional Court Judgment No. 00007-2003-AI. provided by the public entities not be false, 42 Legal public hearings are organized by governmental incomplete, fragmentary, circumstantial authority. In case hearings are convened by other social or confusing. agents, they will not have legal effects, but they will be valid, based on the right to free association. 43 A third party is a person who is not directly involved in the public hearing process (or any process in general), but 40 Constitutional Court Judgment No. 01797-2002-HD. could have a particular interest in it. 10 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
1.6.2 Public participation mechanisms There are three categories of EIAs, depending on during the evaluation of environmental the magnitude of the project and the effects it impact assessments (EIA) may produce: • Environmental statement (DIA), through Law No. 28611, the Environment Act, recognizes which the authority evaluates projects that may the right both to access environmental information produce minor environmental impacts; and to participate in the environmental • Semi-detailed environmental impact assessment management decision-making process. Indeed, any (EIASDs), through which the authority person in Peru has the right to (1) access public evaluates projects that may produce moderate information in a timely manner regarding policies, environmental impacts; and rules, works and activities that might affect the • Detailed environmental impact assessment environment and (2) participate responsibly (EIADs), through which the authority evaluates in the decision-making processes as well as in projects that may generate significant negative defining and implementing policies concerning environmental impacts. the environment. Accordingly, public authorities are responsible for developing guidelines for the On December 20, 2012, Law 29968 came design of formal mechanisms to facilitate public into force, which created the National Service participation in environmental management. for Environmental Certification of Sustainable Investments (SENACE). According to the law, Public participation instruments are aimed at (1) SENACE will be responsible for reviewing and gathering the social, environmental and economic approving the EIADs for activities that may cause concerns of the population comprised within the significant environmental impacts. Therefore, area of influence of a project and (2) providing SENACE is to be appointed as the exclusive adequate information on the potential and real public authority in charge of the EIAD, with the environmental impacts of the project. Thus, the corresponding sectoral authorities retaining the objective of public participation is to promote powers in connection with DIAs and EIAs. dialogue and consensus among the involved parties, serving as a mechanism to avoid immediate On the other hand, Peru is party to Convention or future social conflicts. 169 of the International Labor Organization, which recognizes the right of indigenous The entity in charge of evaluating EIAs for public peoples to be consulted when a project might or private projects depends on the sector in potentially affect their rights and lands. This which said project is executed. Each ministry is treaty was implemented in Peru through Law No. responsible for approving the public participation 29785, Law that Recognizes the Right to Prior rules (through guidelines or directives) applicable Consultation by Indigenous or Native Peoples, to the EIA evaluation process, which must comply in force since December 2011, and its associated with the rules set forth by MINAM. regulation (Supreme Decree No. 001-2012-MC).
The public participation procedure is generally In accordance with these rules, the prior divided into three different phases: before the consultation procedure shall be performed by submittal of the EIA, during the EIA evaluation the authorities when the collective rights of process and after its approval. indigenous peoples may be affected directly by an administrative measure, law or decision. Prior Ministries generally establish both compulsory consultation does not grant the right of veto and voluntary public participation mechanisms to indigenous peoples over any specific activity such as informative workshops, public hearings, or project. mailboxes for observations and suggestions, public participation, information office guided In 2013, the Ministry of Culture published tours and community monitoring programs. The the list of indigenous peoples in Peru that are project developer must address the population’s formally vested with the right of consultation. It is concerns during the submittal of the EIA. (Refer to important to note that this list is merely referential, Appendix 2 for a reference list of applicable public and thus is not a registry. The Ministry of Culture participation mechanisms by economic sector). shall regularly update the information contained in The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 11
the list. For example, the Ministry of Energy and 1.7.2 Annual report regarding the Mines must follow prior consultation procedures decentralization process (2012)45 before authorizing mining exploration or exploitation areas in areas inhabited by indigenous The USAID/Peru Pro-Decentralization Program people. According to INGEMMET, prior to promote dialogue between government consultations do not need to be conducted when levels and civil society issued a report in 2012 mining concessions are being granted, because that provides recommendations to improve the mining concessions do not necessarily authorize decentralization process in Peru. The report mining activities. offers the following key findings: 1. The decentralization secretariat did not meet its objectives in 2012 and its 1.7 Progress of decentralization failure hindered consensus-building in the decentralization process. USAID/ 1.7.1 Ombudsman's Office Report (2009)44 Peru recommends reforms to its structure, organization and decision-making process in This report assessed the progress of the future. decentralization. It concluded that the first stage, 2. The decentralization secretariat lacks related to the installation of regional governments, sufficient autonomy because it is housed was fulfilled. under the Council of Ministers. The report recommends strengthening its autonomy. The following stages have not been fulfilled It argues that it should be granted all the at this point, however. The transfer of powers powers it needs to fulfill its mandates and corresponding to the 3rd and 4th stage has been assess the impacts of measures taken as part initiated without the fully crystallized regional of the decentralization process. governance structures corresponding to the 2nd 3. It is necessary to assess and define the stage. The 3rd and 4th stages have also been functions related to social conflicts developed in parallel, losing the gradualism of the that are under the power of the decentralization process. regional governments. 4. Participation has been relatively low. There All functions regarding education and health have been low public participation levels, matters were transferred to the regional few resources earmarked for investment governments. However, some regional projects through the participatory budget governments, such as Madre de Dios, lack powers and weak participatory dynamics in in fisheries and industry. accountability hearings. USAID/Peru recommends reformulating the public Finally, the report states that the resources related participation mechanisms’ regulations. to the sectoral powers to be transferred to the 5. Ninety-two percent of the national regional governments is one of the weakest points government’s functions had been in that transfer process. transferred to the regional governments, although several problems occurred in the The lack of clear procedures and timelines for process, such as the lack of human and identifying and quantifying the resources that need financial resources. The report emphasizes to be transferred together with the functions has the urgency of tackling this issue and delayed the completion of decentralization. recommends that the national government provide resources to the regional governments so they can effectively fulfill their responsibilities.
44 Ombudsman’s Office Report N. 141 (2009) “Towards a decentralization in the service of the people: recommendations on the process of transfer of competencies to the Regional Governments” http://www.gycperu.com/ 45 http://www.propuestaciudadana.org.pe/sites/default/ descargas/1_Abril/Defensoria%20Informe%20141%20 files/sala_lectura/archivos/Informe%20Anual%20del%20 Descentralizacion%20Transferencia%20GR.pdf Proceso%20de%20Descentralizacion%202012.pdf 12 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
1.7.3 Annual Report (2012 – 2013) of been achieved. Among the problems are poor the Commission on on Decentralization, coordination and lack of clarity in the division Regionalization, Local Governments and of powers between government levels, which Modernization of the State Management46 affects the delivery of services and increases conflicts in everyday relations between In order to guide the development of the state entities. decentralization process, the National Congress annually evaluates the process and delivers a report Moreover, the report identifies inefficient to the president of the Council of Ministers. This resource distribution and allocation of funds report is prepared with the participation of the without a determined purpose as persistent regional government presidents.47 problems in the decentralization process. On the other hand, the report shows that the public The report for 2012 – 2013 was submitted to the participation mechanisms can serve as tools to Commission on Decentralization, Regionalization, prevent corruption and supervise authorities. Local Governments and Modernization of State At the same time, they require political will and Management, which developed an analysis enabling legislation to be effective in practice. and consultation process to assess the state of the decentralization. The report notes that 10 years into decentralization in Peru, it is a non-consolidated This report concludes that, despite the time and complex process with limited achievements elapsed, the decentralization process has a series and still faces numerous challenges. Therefore, it of problems. It finds that the institutional reforms is essential for the State to undertake a thorough of powers required to make the State operate review of the process to identify and deal with efficiently in a decentralized context have not the main challenges identified.
46 http://www.propuestaciudadana.org.pe/sites/default/ files/sala_lectura/archivos/Evaluación%20del%20proceso%20 de%20descentralización%20-%20Com%20Desc.pdf 47 Article 19 of the Executive Power Law. 2 Mechanisms for distributing financial resources
2.1 Forest fees and other royalties local governments. This law creates a canon for the exploitation of the following natural resources: Law No. 26821, the Natural Resources Law, oil, hydrocarbons, forests, minerals, hydropower defines natural resources as “every component of and fisheries. nature that can be used by humans to satisfy their needs and that have an actual or potential value in The income regional and local governments the market.” These include water, soil, biodiversity, receive as canon shall be used exclusively to fund hydrocarbons, minerals and forests. This law or co-finance projects or infrastructure of regional establishes that all natural resources are part of the and local impact. The regional governments shall national heritage.48 provide 20% of the canon’s total amount to public universities under their jurisdiction.51 (Bear in The Constitution stipulates that natural resource mind that “canon” is different from “royalties”).52 exploitation must serve the national interest. Thus, the benefits generated from such exploitation 2.1.1 Consideration fees for forest must be distributed throughout the nation. In concessions accordance with this principle, the government, as the political expression of the nation, is the According to Law No. 27308, the Forestry Law, titleholder of all natural resources and has the the use of forest products is subject to the payment power to regulate, manage and assign titles of a consideration fee (derecho de aprovechamiento) over them. to the national government. It is important to note that this fee is not considered a tax; rather, Constitutional court case law has established that it is the payment that forest concession holders natural resource users must compensate the nation owe for exploiting forest resources that belong to for using such resources. Such compensation must the nation. be based on economic, social and environmental criteria and be approved by ad hoc laws. These In the case of timber concessions, concessionaires payments may be materialized through a pay based on the timber value estimated by consideration fee and/or a good standing fee.49 hectares of forest, taking into consideration the forest’s productive potential, the volume of timber Likewise, the Natural Resources Law stipulates that extracted and the value of the species extracted.53 a percentage of the rents associated with natural resource exploitation are shared with regional and local governments (this percentage is called “canon” in Peru).50 Law No. 27506, the Canon Law, defines the canon as the share of income obtained 51 Articles 46 and 77 of the Decentralization Law and by the national government from economic natural Article 69 of the Municipalities Law. resource exploitation and due to regional and 52 The national government has created a type of fee over mining resources known as the “mining royalty,” defined by the Mining Royalty Law as the amount paid to the State by 48 Article 4 of the Natural Resources Law. the holders of mining activities for the exploitation of metallic 49 Articles 20 and 29 of the Natural Resources Law. and non-metallic mineral resources. 50 There is no translation of canon to English. 53 Article 19 of the Forestry Law. 14 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
The amount of the consideration fee varies reforestation and recovery of degraded according to the type of right. For forest ecosystems.62 The Forestry Law indicates that concessionaires, it is established in the concession non-payment of fees causes termination of the agreement and is paid per hectare/year of the concession agreement.63 concession.54 For ecotourism concessionaires in areas unsuitable for forestry production, it Distribution according to the Canon Law is calculated according to the requested surface area. For ecotourism concessionaires within The Canon Law indicates that the canon will be permanent production forests, it is applied distributed to all local governments within the according to the rules for forestry products.55 region where the natural resources were exploited, Conservation concessions in protection forest lands with preference given to the district and province are not subject to the payment of consideration where exploitation actually took place.64 fees because they are considered a voluntary contribution to maintenance of these areas.56 The forest canon is distributed as follows: • 10% to the district government where the Fifty percent of consideration fees are distributed natural resources are exploited. according to the Forestry Law and the other 50% • 25% to the district governments of the province is distributed according to the Canon Law.57 where the natural resources are exploited. Distribution according to each of these laws is • 40% to the provincial governments of the described below. region where the natural resources are exploited. • 25% to the regional government where the Distribution according to the Forestry Law natural resources are exploited.65
In the case of forest concessions, the consideration The resources that regional and local governments fees are distributed as follows58: receive must be used to fund or co-finance projects • 60% to the corresponding regional government with a regional or local impact. Also, regional (part of this amount will go to the promotion governments will give 20% of the canon to the of forest management committees). public universities in their jurisdiction, which may • 30% to MINAGRI. be used only for science and technology research.66 • 10% to OSINFOR. When a forest concession is located in two or more districts, the canon will be equally distributed Consideration fees from other types of concessions among such districts.67 The canon is also applicable and deforestation rights are distributed as follows59: to the income obtained from permits and • 60% to the appropriate regional government. authorizations filed with the forestry authority. • 40% to MINAGRI.
The entity in charge of collecting these fees is 2.2 Payment for Ecosystem Service MINAGRI60 and the regional governments (if they (PES) schemes have received such powers on an ad hoc basis).61 PES schemes are commonly defined as mechanisms The fees are allocated for forest development, to improve the provision of indirect ecosystem improving monitoring capabilities and surveillance services in which (a) those providing said services systems; and for promoting afforestation, get paid for doing so, and (b) those benefiting from environmental services pay for their provision. 54 Article 70 of the Forestry Law Regulations. 55 Article 70.5 of the Forestry Law Regulations. 56 Article 70.6 of the Forestry Law Regulations. 62 Article 73 of the Forestry Law Regulations. 57 Article 14 of Law No. 27506. 63 Article 18 of the Forestry Law. 58 Article 74.1 of the Forestry Law Regulations. 64 Article 4 of the Canon Law Regulations. 59 Article 74.2 of the Forestry Law Regulations. 65 Article 5 of the Canon Law. 60 Article 73 of the Forestry Law. 66 Article 6 of the Canon Law. 61 Supreme Decree No. 011-2007-AG (Approves transfer of powers from INRENA to Regional Governments). 67 Article 4 of the Canon Law Regulations. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 15
2.2.1 Status of PES in Peru will be implemented progressively, in accordance with regulations. On June 30, 2014, the Peruvian Congress enacted • The role of regional and local governments the Payment for Ecosystem Services Law, which is described. Sub-national governments shall aims to promote, regulate and supervise PES promote the implementation of PES schemes schemes to ensure the generation of economic, in accordance with the decentralization social and environmental benefits provided framework. These governments shall consider by ecosystems. conservation, restoration and sustainable use of sources of ecosystem services in Among the most relevant provisions of this law, we their budgets. highlight the following: • The law states that public entities may raise • Ecosystem services are defined as the direct and funds and transfer them to the contributors of indirect economic, social and environmental ecosystem services. benefits that people obtain from the correct • The law requires that specific regulations functioning of ecosystems such as watershed bringing it into force be passed within 120 regulation, maintenance of biodiversity and calendar days of the law’s passage. carbon sequestration, among others. • The PES Law does not regulate the • The promotion of public and private distribution of economic benefits between investments for the conservation, restoration the parties involved in the PES scheme or and sustainable use of the sources of ecosystem the State. services is declared of national interest. • Ownership of ecosystem services is In addition, SERNANP issued Resolution defined. Ecosystem services are considered No. 26-2014-SERNANP in early 2014. This national heritage. resolution contained a directive regulating • PES schemes are defined as the mechanisms, the sale of carbon certificates generated from tools, instruments and incentives applied to conservation projects within Natural Protected generate, channel, transfer and invest economic Areas (NPAs). The directive allows those resources for the conservation, restoration and in charge of management agreements with sustainable use of the sources of ecosystem SERNANP to operate PES schemes within services. The law recognizes contractual freedom the NPA and commercialize the carbon credits for the contributors and beneficiaries to agree in accordance with the procedures established on PES schemes to be implemented. However, by the resolution. This includes selling carbon the mechanism proposal must be assessed and credits derived from REDD+ projects in NPAs. approved by MINAM. Notably, the directive also requires REDD+ • Ecosystem service “contributors” are defined as: project operators in NPAs to reinvest the income (i) owners, possessors or titleholders of lands; obtained from the sale of the carbon credits in (ii) those to whom the Peruvian government the NPA or NPA system (SINANPE). has granted a title to use renewable natural resources; (iii) NGOs holding management Several programs involving compensation agreements over natural protected areas and (iv) for ecosystem services already exist. They are others recognized by MINAM. described below. • “Beneficiaries” for the provision of ecosystem services are defined as the private or public, National Forest Conservation Program for natural or legal persons that, obtaining a social, Climate Change Mitigation/Programa Nacional ecosystem or economic benefit, compensate de Conservación de Bosques para la Mitigación the contributors for the ecosystem services del Cambio Climático (PNCB) they provide. • The creation of a PES scheme registry is The PNCB was created by Supreme Decree No. established. MINAM is in charge of managing 008-2010-MINAM as a voluntary initiative the registry of PES schemes. The purpose of the to help conserve 54 million hectares of forest registry is to validate the PES schemes agreed through the execution of forest conservation upon by contributor and beneficiary, as well as agreements with local and regional governments regulating and supervising them. The registry and peasant and native communities. 16 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
The idea behind it is to promote specific To date, there are: (a) 48 native communities interventions that conserve tropical forests to and 3 regional governments (Amazonas, mitigate climate change. The main aims of PNCB San Martin and Pasco) associated with are to (1) identify forest conservation areas, (2) PNCB; (b) 2,325 participating families; (c) promote the development of sustainable and an economic incentive of S/.4,315,403.00 productive systems that generate income for (US$1,659,770.00) per year; (d) 5.5 million local people in the forests and (3) enforce the hectares of forest committed to be conserved; capabilities of the regional and local governments and (e) two inter-institutional cooperation to conserve forests. conventions, one with SERNANP and the other with OSINFOR.68 In order to comply with the PNCB objectives, the following types of agreements may be entered into: The San Martín Experience • Agreements executed with the regional governments On December 13, 2011, the San Martín For a period of 4 years, MINAM grants the regional government issued Regional Executive regional government economic incentives Resolution No. 1397-2011-GRSM/PGR administered by PNCB. These incentives recognizing two protection and ecological involve investments in strengthening the conservation zones69 as “public domain,” capabilities of regional public servants to protect i.e. belonging to the State. The purpose of the region’s primary forests and to prepare work these zones is to guarantee the provision of plans and inclusive business plans for tourism ecosystem services in accordance with San and the green economy. Martín’s Economic Ecological Zoning / • Agreements executed with peasant and Zonificación Ecológica Económica (ZEE). Article native communities 38 of the regulation for the application of For a period of 5 years, peasant and native the San Martín ZEE, approved by Regional communities are paid for the conservation of Decree No. 002-2009-GRSM/PGR, precisely the primary forest in the area of the community. establishes that “the zones of protection and The economic incentive amounts to S/.10.00 ecological conservation shall be identified (USD4.00) per hectare and is granted directly in order to grant legal safeguards through to the community for its administration their registration.” through investment plans and/or inclusive business plans, prepared by each community In this case, the regional government registered with the advice of PNCB. the two zones as public property, specifically • Agreements executed with national under liens and encumbrances. Thus, it appears government ministries that the target of this resolution is to protect Incentives are granted to national government certain areas for their particular ecological ministries to strengthen their capacities to characteristics and the ecosystem services they help improve preventive and control activities provide. This strategy does not therefore qualify ensuring forestry conservation. as a PES scheme, strictly speaking.
68 http://bosques.minam.gob.pe/ 69 “Zona de Conservación y Recuperación de Ecosistemas Rumicalarina – Huiswinchos” and “Zona de Conservación y Recuperación de Ecosistemas Juanjuicillo.” 3 Description of roles of different government levels in land use decision/ policy arenas affecting forests
3.1 Land use planning/Ordenamiento that provides technical information and the applicable Territorial referential framework to promote and guide public and private investment. Land Use Planning / Ordenamiento Territorial (OT) is a planning tool designed to define The authority in charge of managing the ZEE process criteria and environmental indicators that enable in Peru is MINAM. The Executive Branch, as per efficient land use allocation, as well as the ordered the proposals made by MINAM in coordination occupation of land. OT responds to the need with the decentralized levels of government, sets to plan and organize the territory, assigning use forth the national ZEE policy. The national sectoral priorities based on socioeconomic, cultural and ministries and sub-national governments are in charge ecological aspects.70 While OT was conceived of of executing the ZEE within their corresponding as a strategy for land use planning, it was never jurisdictions.73 binding. An economic stimulus package passed in July 2014 clarified that it is merely referential.71 Specifically, MINAM is in charge of: (a) preparing OT is largely based on physical, biological, the national ZEE strategy; (b) preparing the biennial environmental, social, economic and cultural operating plan74 and submitting it to the Multisectoral variables that are characterized through a process Environmental Commission75; (c) proposing the called Economic Ecological Zoning / Zonificación appropriate laws for viable ZEE processes; (d) Ecológica Económica (ZEE). There are several developing and disseminating ZEE procedure subsequent components of the process, but this manuals; (e) promoting, coordinating and monitoring section focuses on ZEE, as it has the most direct ZEE processes at the national level; (f) resolving bearing on non-binding land use classification. contradictions between sectoral decisions and those of other government levels concerning the use categories ZEE is introduced by Article 11 of the Natural defined in the ZEE; (g) promoting and participating Resources Law as a mechanism to prevent conflicts in ongoing training on issues related to the ZEE; and related to overlapping titles and improper land (h) promoting the diffusion of completed ZEE studies. uses. It is a basic component of OT used to identify different alternatives for the sustainable In sum, while MINAM directs the ZEE process use of a given area, with the aim of informing (policy-making), each sectoral ministry is in charge of decision-making regarding the best uses of the putting it into practice (see Table 1). land, considering people’s needs and harmony with the environment.72 ZEE is an instrument Participation and consultation are key elements of ZEE. At all stages, ZEE processes must be transparent and participatory. ZEE requires the commitment of 70 Chirinos, Carlos and Ruiz, Manuel. "Concesiones the public and private sectors as well as civil society. sobre Recursos Naturales: Una Oportunidad para la Gestión Arenas for outreach, training, public consultation and, Privada. "Sociedad Peruana de Derecho Ambiental SPDA. if appropriate, public hearings are mandatory. Lima, Primera Edición. Año: 2002. P.81-86. 71 Ley 30230, “Ley que Establece Medidas Tributarias, Simplificación de Procedimientos y Permisos para la 73 Article 11 of the ZEE Regulations. Promoción y Dinamización de la Inversión en el País.” 74 Article 19 of the ZEE Regulations. 72 Articles 1 and 2 of the ZEE Regulations, approved by Supreme Decree No. 087-2004-PCM. 75 Article 9 of Legislative Decree No. 1013. 18 | Patrick Wieland Fernandini and Ronnie Farfan Sousa continued on next page continued To date, hasMINAM not To ZEE at a national approved “OT” a part as of the level policy. Governments Regional The Law theauthorizes to governments regional ZEE, their own approve limitations subject any to OT. national from Other/comments N/A Once the ZEE is approved, the ZEE is approved, Once useall institutions may it land for tool a referential as use planning. N/A District N/A N/A to h authorizes f and local governments g coordinate their land use planning coordinate policies with each other and with the considering government, national by civil the formulated proposals society. regional The Environmental Law Environmental The Provincial/Local At the local level, provincialthe local level, At the for responsible are governments municipal by ZEE the of first approval government regional The ordinance. the decision. must then ratify If the ZEEor two more includes it must provinces, be approved government provincial every by by and ratified the involved corresponding government. regional Provincial governments are jointly in jointly are governments Provincial the of implementing charge ZEE. must governments provincial The and/orworkshops promote other for participatory mechanisms the results and disseminate ZEE, must also They approved. once support through dissemination programs. education environmental
c and local d to coordinate coordinate to e their land use planning policies with each other and government, with the national theconsidering proposals by civil society. formulated authorizes regional authorizes Regional The Environmental Law Environmental The governments At the regional level, the level, regional the At governments regional regional ZEE by approve ordinance. If the ZEEor two more includes itbe must approved regions, governments by all regional involved. Regional governments governments Regional in jointly of are charge theimplementing ZEE. governments Regional workshops must promote and/or other participatory and ZEE, mechanisms for once the results disseminate approved. Deconcentrated office central N/A N/A N/A
b the Executive the Executive a Branch establishes Branch the ZEEnational policy based on the of proposal MINAM Central in coordination with in coordination the decentralized of levels government. At the national the At the of level, Council Ministers approves the ZEE applicable through Peru for decree. supreme According to the to According Environmental Law, Approved ZEE results ZEE results Approved passed on to are sectoral ministries decision- inform to making. Once approved, approved, Once is MINAM the for responsible of administration ZEE. Function Authorization (decision over each case) Policy and norms Policy Administration Administration (implementation) Table 1. Distribution of Powers and Responsibilities Related to Land Use Planning Land Use to and Responsibilities Related 1. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 19 N/A Other/comments N/A The creation of creation a The ZEE is Committee Technical micro- optional when is performed. zoning N/A District N/A N/A j k The provincial government is subject government provincial The an official auditing by permanent to who depends functionally on the Office. Comptroller’s National The Internal Control Entity is in Entity Control Internal The environmental ofcharge executing regarding measures control as goods as well natural resources, constituting cultural the national heritage. Provincial/Local N/A Provincial governments are in charge in charge are governments Provincial in their and monitoring of control jurisdictions. including the Other organizations, and citizen committees technical also involved. are surveillance, is in charge is in charge i of executing environmental environmental of executing regarding measures control natural as well resources the goods constituting as heritage. cultural national Regional N/A Regional governments governments Regional of control in charge are in theirand monitoring jurisdictions. including Other organizations, and committees the technical also are surveillance, citizen involved. The regional government is government regional The subject permanent auditing to Regional by the Congress, and citizens. Council InternalRegional The Control which depends Entity, functionally on the National Office, Comptroller Deconcentrated office central N/A N/A N/A Central N/A MINAM is in charge is in charge MINAM and of control of monitoring the at ZEE and OT national level. N/A Articles 21 and 22 of the Environmental Law; Article 6 of the Framework Law of the National Environmental Management System, Law No. 28245; Articles 22, 53, 54 and 55 of the No. Law Management System, Environmental of the National Law Law;Articles Article 21 and 22 of the Environmental 6 of the Framework 28245. No. Regulation of Law of MINAM. Regulation Articles and Functions 11 and 37 of the Organization Law. Article 22 of the Environmental 28245 and Article Law. Article Governments 50 of the Regional No. Management System; 38 of the Regulation Law Environmental of the National Law Article 22 of the Framework 28245 and Article Article 73 of the Municipalities Law. No. Management System; of Law 46 of the Regulation Environmental of the National Law Article 24 of the Framework Law. Article 22 of the Environmental 28245 and Article Law. Article Governments 50 of the Regional No. Management System; 38 of the Regulation Law Environmental of the National Law Article 22 of the Framework 28245 and Article Article 73° of the Municipalities No. Law. Management System; 46 of the Regulation Law Environmental of the National Law Articles 24 of the Framework Articles Law. Governments 75 and 76 of the Regional Article 30 of the Municipalities Law. 28422. No. Law 27785, amended by Article No. 22 of Law Function Processing crime/ Processing sanction Control/ monitoring Auditing b c d e f g h i j k Table 1. Continued Table a 20 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
The degree of participation will depend on the • A representative of a university located in the level of study performed to define the potential work area. and the limitations of an area. ZEE studies are • Representatives of the government sectors conducted at multiple levels: (a) the macro level, and levels with jurisdiction over granting which generates information for the drafting authorizations for the use of land or natural and approval of policies, development plans and resources in the area where the ZEE will land use planning, mainly at the national and be developed. regional levels; (b) the meso level, which generates • Two representatives of indigenous information for the drafting and approval of peoples’ organizations. development plans and land use planning, as • Two representatives of the private sector. well as the identification and promotion of • Two representatives of NGOs. development projects, mainly at the regional and watershed levels or in specific areas of interest and The ZEE’s objectives and methodological (c) the micro level, which generates information framework are defined in the formulation for the drafting, approval and promotion of stage, including training, technical and public development projects, area management plans and consultation and the development of technical specific subjects at the local level.76 documents and mapping. A multidisciplinary technical team78 shall prepare a work plan before The ZEE process includes the following 5 stages77: making a proposal to the relevant authority, (a) initial stage; (b) formulation stage; (c) approval depending on the level of government. After stage; (d) application stage and (e) monitoring, the ZEE is approved by the relevant authority evaluation and updating stage. (Table 1), it is applied through participatory mechanisms involving all sectors in charge of The initial stage involves the decision of the granting authorizations for land or natural corresponding authority at the appropriate resource use. government level to begin preparing the macro, meso or micro planning process, according to the As a result of a dynamic, flexible and participatory provisions of the biennial operating plan. Each process, the ZEE may be updated when ZEE process developed at the national or regional monitoring and evaluation activities are performed, level (macro or meso) requires the formation of especially in cases where socioeconomic processes a technical committee, but is optional for micro justify the change of land use, scientific and studies. It is important to note that the ZEE must technological improvements, land use changes be considered a Public Investment Project. due to natural events, or identification of new undiscovered natural resources, for example. The functions of the technical committee are to: (a) propose, review, monitor and coordinate the The consultation79 includes the participation of implementation of the regional and local ZEE regional, provincial and district governments, process, as well as issues related to national macro- sectoral directorates and representatives of zoning and (b) propose consultation, participation, civil society organizations such as professional outreach and training mechanisms. associations, business associations, media and NGOs. Public and private institutions with direct Technical committees are constituted activities in the territory, peasant and indigenous through ordinances issued by regional and/ communities, and business associations also or local government, and are composed of the participate. Public institutions and citizens are following members: allowed to participate in the monitoring stage.80 • A representative of the regional government. • The mayor of the local government where the ZEE is to be conducted 78 This team will be formed during the formulation stage • A representative of a scientific institution and will gather professionals specialized in the material. located in the work area. 79 Consultation of the ZEE proposal is performed in the formulation stage. Before its approval, the proposal needs to be ratified and validated by the people involved through 76 The macro, meso and micro level studies require a workshops, according to the study level. The final document working scale of: less than or equal to 1:250,000, 1:100,000 must include the observations formulated by all social actors and 1:25,000, respectively. in order to have a consented and consensual final ZEE 77 Article 18 of the ZEE Regulations and the Directive proposal. “Methodology for the ZEE.” 80 “Methodology for the ZEE” Directive. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 21
3.2 Defining land vocation and aptitude depends on its chemical composition), conversion rights but rather removal of forest cover on the land previously classified as suitable for “clean farming,” The Natural Resources Law establishes that the soil “permanent cultivation” or “pasture.” Five general and subsoil and the agricultural, livestock, forest types of changes in land use can be identified: and protection lands (in accordance with vocation) forest harvesting, forest conversion, agricultural are regarded as “natural resources.” The vocation cycles, agricultural transitions and direct changes. (capacidad de uso mayor) of a given geographic area is defined as its natural ability to produce The provisions regarding conversion rights consistently under continuous treatment and for are provided in the Forestry Law and its specific uses.81 regulations, and said proceeding must be performed in compliance with Resolution No. Land classification according to vocation is a 212-2005-INRENA. It is important to note technical-interpretive system for assigning a that both proceedings – the classification of the potential determinate use, value and proper vocation of land and the conversion rights – do not management type for each unit of land, which require the participation of affected populations, involves translating the results of technical soil NGOs or the private sector. studies into a practical language through an interpretation process. The results of that process are predictions regarding the likely behavior of 3.3 Titling of Agricultural Lands land and soils under certain weather and terrain conditions and a determinate best land use and The titling of agricultural lands in Peru has evolved management. In this way, the soil can be classified significantly since the agrarian reform of 1969. in three hierarchical categories: vocation group, Nowadays, different processes are recognized in vocation class and vocation subclass.82 order to obtain a land title for agricultural and livestock lands. (Note: Titling of forest lands is The authority in charge of classifying as well described in the following section of this report). as implementing, monitoring, promoting and distributing the land according to its vocation Agricultural and livestock land titling can be is MINAGRI, through the General Directorate classified into: of Environmental Agricultural Affairs, in 1. Titling process requested by a private person, coordination with MINAM at the national level regulated by Legislative Decrees No. 653 and (see Table 2). No. 108986 and 2. Titling process requested by native and/ Notwithstanding the above, the law enables or peasant communities, ruled by Law No. other public and/or private organizations besides 22175, Law No. 26845 (for communities in MINAGRI to classify land.83 This classification the coast) and Law No. 24657. must not only comply with the rules set forth by MINAGRI, but also be approved by it in It is important to note that in both processes the coordination with MINAM.84 right granted is a property title, unlike in the case of native lands with a forest vocation (described in Once the lands are classified, the Forestry Law85 the subsequent section), where the right granted by still permits changing non-forestry lands to the government is a use right (usufruct). The most other sustainable uses. This change does not important difference between these two rights is imply an aptitude change of the land (as the soil that the first one confers full access, use, exclusion and alienation rights to land, whereas usufruct rights only entail some of these rights, and never 81 Article 8 of the Regulation of Classification of the Land by its Vocation, approved by Supreme Decree No. 017-2009- full alienation rights. AG. 82 Article 9 of the Regulation of Classification of the Land by its Vocation. 83 Articles 13, 14, 15 and 16 of the Regulation of Classification of the Land by its Vocation. 86 The Regulation of Legislative Decree No. 653 was approved by Supreme Decree No. 048-91-AG, whereas the 84 Article 64 of the Supreme Decree No. 031-2008-AG. Regulation of Legislative Decree No. 1089 was approved by 85 Approved by Supreme Decree No. 014-2001-AG. Supreme Decree No. 032-2008-VIVIENDA. 22 | Patrick Wieland Fernandini and Ronnie Farfan Sousa continued on next page continued Other/comments N/A SERNANP will issue a opinion intechnical cases protected a natural where is area involved. In regional practice, play may governments in administration a role over land and “control” classification. N/A N/A District N/A N/A N/A N/A N/A Provincial N/A N/A N/A N/A N/A
d Regional N/A No. Ministerial to Resolution According governments the regional 0443-2010-AG, their of through departments with forests, in are of agriculture, directorates regional rights of authorizing conversion charge and conversion. approving is government in of regional charge The of fulfillment and monitoring controlling but this authority rights, the conversion cannot sanction should an irregularity be discovered. N/A Deconcentrated Deconcentrated office central N/A N/A N/A N/A N/A a b c MINAGRI, in coordination with MINAM, with MINAM, in coordination MINAGRI, is the authority in of charge approving applicable rules the policies and to classification of the lands and rights. conversion Central MINAGRI is the only authority with only authority with is the MINAGRI classify lands according to powers classification ofto The thevocation. land directorial through is approved resolution. only authority in is the MINAGRI supervising of andcharge executing, at land classification a disseminating level. national only authority in is the MINAGRI supervising of andcharge executing, atpublicizing land classification the level. national N/A Policy and norms Policy Function Authorization Authorization (decision over each case) Administration (implementation) Control/ monitoring Auditing Table 2. Distribution of Powers and Responsibilities Related to Defining Land Vocation and Conversion Rights Conversion and Vocation Defining Land to and Responsibilities Related 2. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 23 Other/comments District Provincial
h g Regional pursuant to which the person who uses to pursuant urban for vocation land with an agricultural extractiondevelopment, or construction purposes will be punished with a penalty than 4 and no more of no less than 2 years years. article the same logic, 313 of Following applies in the case of the Criminal Code degradation. environmental The Criminal Code states that it is a crime that states Criminal Code The or authorization grant to an official for without resources natural rights over any laws. with environmental complying The Criminal Code also criminalizes also criminalizes Criminal Code The lands, use of agricultural inappropriate Deconcentrated Deconcentrated office central has also included has also included f e MINAGRI, through its through General MINAGRI, of Environmental Directorate is Affairs, the authorityAgricultural in of charge sanctioning non- with environmental compliance It sanctionsregulations. conversion rights if they not in were contained certification ofthe environmental the project. Central an article pursuant which a to person bywho the uses lands designated or other uses agricultural authority for changing without authorization for a penalty face of 2-4 will use land penaltyThis also applies to years. sells to sellor whoever lands offers defined as agricultural. is still no there On the other hand, special sanctions for in case regulation of non-compliance with regulations to classification of related theby land vocation. The Criminal Code In its quality as the National Agriculture Authority, according to Supreme Decree No. 013-2010-AG. No. Decree Supreme to according Authority, In its quality Agriculture as the National Vocation. Articleby its of the Land of Classification 12 of the Regulation Vocation. Articleby its of the Land of Classification 12 of the Regulation 0443-2010-AG. Ministerial Resolution No. 28422. No. Law 28422, amended by No. Law 27785, amended by Article No. 22 of Law Article 311 of the Criminal Code. Article 314 of the Criminal Code. Article 311 of the Criminal Code. Processing crime/ Processing sanction Function b c d e f g h Table 2. Continued Table a 24 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
3.3.1 Titling process requested by a private possesses land owned by another private entity. In person both cases the process is very similar, except for the requirement to exercise possession as an owner in Legislative Decree No. 653 sets forth regulations the second scenario. for agricultural and livestock land titling in favor of private sector natural and/or legal persons (i.e. Finally, these processes involve a participatory stage investors). The purpose of this law is to promote in which promotion and diffusion are performed private investment in the forest, grant legal before the cadastral survey. In the case of adverse tenure security and ownership of rustic lands, and possession in private lands, the participatory promote efficient production and capitalization stage is more intense. It requires notification to of the agricultural sector. Land titling is executed the owner and third parties and recording in the through purchase agreements subject to total Public Registry of the adverse possession process payment of the property's price. The agreement being initiated. may be formalized by a signed and notarized private contract, which is sufficient title for 3.3.2 Titling process requested by native land registration. and peasant communities
The authority in charge of conducting the titling To apply for a title, a native community must process in favor of investors is the corresponding be previously recognized by the government. To regional government, depending on the land be recognized, the community must go through requested, in accordance with subparagraph n a specific process that ends with a directorial of Article 51 of the Regional Governments Law, resolution of recognition in favor of the native which establishes that regional governments are community. The authority in charge of this titling authorized to promote, manage and administer process is the corresponding regional government agricultural lands, with the participation of through the regional directorate of agriculture. stakeholders, safeguarding the imprescriptible, inalienable and indefeasible character of native and Briefly, the process has three stages: (a) preliminary peasant community lands. stage, in which communities are notified of upcoming field work; (b) field work stage, in which This titling process involves several steps, all of the work team collects information about the land which are performed before the corresponding and any natural protected areas; and (c) processing regional directorate of agriculture. This process stage, in which reports are prepared to approve does not involve any public participation because or dismiss the community’s application. If the the property title is granted as a result of a purchase application is approved, a directorial resolution is agreement and not by an administrative process. issued, and the community is registered.
On the other hand, Legislative Decree No. 1089 It is important to note that prior to all land titling and its regulations set forth the process to formalize processes in favor of private parties or native (through adverse possession) the property of or peasant communities, land classification87 villagers and small farmers, which is also handled and verification of the existence of any natural by the corresponding regional government. protected areas or forestry resources88 must be It is important to mention that this process is conducted. If there are natural protected areas or applicable to rustic lands only, understood as those forest resources in the area, the regional directorate with agricultural use, located in a rural area and of agriculture must request the opinion of dedicated to agricultural activities, as well as lands SERNANP or the General Directorate of Forests located in an urban expansion area destined to any and Wildlife, respectively. Table 3 describes how farming activity. functions related to titling of agricultural lands are distributed among government offices. This process starts at the initiative of the regional government, and involves the prior determination of the “land unit” to be formalized. According to Legislative Decree No. 1089, there are two 87 According to the first final complementary provision of possible scenarios regarding agricultural and Legislative Decree No. 1089 and article 5° of Law Decree No. livestock land titling: (a) a private entity possesses 22175. land owned by the State, or (b) a private entity 88 According to Supreme Decree No. 037-99-AG. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 25
Table 3. Distribution of Powers and Responsibilities Related to Titling of Agricultural Lands Function Central Deconcentrated Regional Provincial District Other/comments central office Policy and MINAGRI is N/A The regional governments N/A N/A N/A norms in charge of have the power to regulate approving their own titling processes, the national including the requirements land titling under their provisions.b policy.a National policy limits the powers of regional governments, whose provisions cannot overlap with national policy. Authorization N/A N/A The regional governments, N/A N/A Authorities such as (decision over through the regional SERNANP and the each case) directorates of agriculture, forestry authorities are the authorities participate in the titling responsible for land titling.c process by giving their opinion when forest resources or natural protected areas are involved.
The General Directorate of Environmental Agricultural Affairs is also involved, as titled lands must first have their vocation declared. Administration Once the ownership title N/A N/A is granted, the regional N/A N/A N/A governments stops administering the land. After the resolution is issued, the land becomes the property of the private party, which means that the applicable rules are now the provisions contained in the Civil Code.d N/A N/A N/A N/A N/A Once the ownership title Control/ is issued there is no need monitoring to control or monitor the activities executed by the owner on his/ her land, because it is understood that the land is agricultural. Auditing N/A N/A N/A N/A N/A N/A Processing N/A N/A N/A N/A N/A N/A crime/sanction a According to Supreme Decree No. 013-2010-AG. b Article 51 of the Regional Governments Law. c Article 51 of the Regional Governments Law. d Article 923 of the Civil Code, approved by Legislative Decree No. 295. 26 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
3.4 Titling of native lands with forest as the soil – are considered state-owned property, vocation89 which means they are under the control of the State. Lands that are not recorded in the public Article 2 of the Forestry Law stipulates that forest registry and do not constitute private or communal resources may not be used for agricultural and property are also considered state-owned assets.92 livestock purposes or other activities that may affect the vegetation cover, sustainable use or forest Supreme Decree No. 054-2013-PCM, passed in resource conservation. 2013, describes the procedures for the titleholder of investment projects to request the land Therefore, private property and the execution of easements from sectoral authorities considered agricultural and livestock activities are expressly necessary for the project. If granted, the sectoral forbidden on lands with forestry vocation. authority then presents its authorization to the Additionally, article 37 of the Forestry Law states Superintendence of National Assets (SBN) in order that the granting of ownership titles or possession to obtain a temporary or permanent easement certificates over state-owned lands with forest over such land, whether or not it is recorded in the vocation is prohibited. Peruvian Registry. Through this proceeding the SBN also decides which authority is in charge of It is important to note that, according to Law granting the easement. Decree No. 22175, native lands with forest vocation will not be granted to native communities The public entities that make up the SBN are as a property right but in usufruct (right to entitled to acquire, administer, dispose of, register use).90 This rule authorizes the government to and supervise93 State-owned assets, provided that assign the use of a specific area in favor of native they use them in licit activities. The SBN is made communities, through assignment agreements up of: (a) the SBN itself, as the governing entity; executed with the regional directorate of (b) the national government; (c) public bodies with agriculture, pursuant to Directorial Resolution No. autonomy under the Constitution; (d) the entities, 0499-2009-AG. The assignment of the lands does projects and programs of the State, whose activities not include a public participation phase. are developed by virtue of the powers legally granted; (e) the regional governments; (f) the local Finally, the new Forestry Law,91 which will come governments and their companies under public into force when its regulations are approved, regulation and (g) the state companies. establishes that in order to grant rights over other natural resources, the authorities in charge must The actions executed by regional governments request the prior opinion of SERFOR when the regarding the assets of their properties94 are land involved may affect forest resources. The governed by the provisions of the Regional purpose of this rule is to compel authorities to Governments Law, which requires regional assure that no forest resources are involved when governments to register their assets with SBN. they grant rights over natural resources other Local governments also execute actions regarding than forest concessions. Table 4 summarizes these their own property and administer assets given by powers and responsibilities. virtue of the decentralization process. Regional governments administer and grant property rights over state-owned urban and barren lands within 3.5 Government ownership and their jurisdiction, except for such assets that fall administration of land within the scope of the national government,95 projects of national interest96 and municipal lands. According to Law No. 29151, the National System of State-owned Assets Law, movable assets and real estate under private or public domain – such 92 Article 23 of Law No. 29151. 93 Article 4 of Law No. 29151. 89 This section does not refer to forestry concessions; please 94 Article 3 of the Regional Governments Law. refer to the specific section. 95 Article 1 of Legislative Decree No. 994 and Article 2 of 90 Article 11 of Law Decree No. 22175. Supreme Decree No. 023-2004-PCM. 91 Article 62 of Law No. 29763. 96 Article 4 of Supreme Decree No. 020-2008-AG. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 27 continued on next page continued Other/comments Prior to forming agreements forming to Prior with the regional communities, native conducts studies to government define thevocation of theto be land assigned. authorities such as SERNANP Also, and of the General Directorate Forests and Wildlife participate giving by process titling in the or forest their opinion when NPAs be affected. may resources N/A N/A N/A N/A District N/A N/A N/A N/A N/A Provincial N/A N/A N/A N/A N/A b d e c f The regional governments are in of are charge governments regional The policies and and concrete executing formulating actions inclusion, prioritization and regarding promotion of and communities. native peasant Regional Once the assignment agreement is executed, the is executed, theOnce agreement assignment land. its own community administers native the are authorities governments regional The in of controllingcharge and compliance monitoring with the national which includes forestry policy, fulfillment ofexecuted. the agreements is subjectgovernment to permanent regional The auditing and Regional Council by the Congress, authorityThe with audit is powers the citizenry. which depends InternalRegional Control Entity, functionally and on organically the National Office. Comptroller’s The regional governments, through through the governments, regional regional The the are authorities of agriculture, directorates responsible signing for agreements the assignment communities. with native N/A Deconcentrated office Central N/A N/A N/A N/A a Central MINAGRI is the MINAGRI authority in charge the of approving landnational titling policy. N/A N/A N/A N/A Function Policy and Policy norms Administration Control/ monitoring Auditing Authorization Authorization (decision over each case) Table 4. Distribution of Powers and Responsibilities Related to Titling of Native Lands with Forest Vocation Lands with Forest of Native Titling to and Responsibilities Related 4. Distribution of Powers Table 28 | Patrick Wieland Fernandini and Ronnie Farfan Sousa Other/comments N/A District N/A Provincial N/A g h i Regional InternalRegional EntityisThe the authority Control ofin control executing charge environmental regardingmeasures as natural as well resources goodsNationalthe constituting Cultural Heritage. Criminal CodeThe has athe crime for regulated official an authorization oranygrants who right with naturalthe without complying over resources laws. environmental On the other hand, if a native community does if a native On the other hand, set forth in the with the provisions not comply it will or forestry regulation, Agreement Assignment 017- No. Decree Supreme to be sanctioned according 2012-AG. Deconcentrated office Central N/A Central N/A According to Supreme Decree No. 013-2010-AG. No. Decree Supreme to According Article Law. Governments 60 of the Regional and Article Law. Article Governments 0499-2009-AG 51 of the Regional 1 of the Ministerial Resolution No. 003-79-AG. Article No. Decree 109 of Supreme Article Law. Governments 51 of the Regional Articles Law. Governments 75 and 76 of the Regional 28422. No. Article Law 27785, amended by Nl. 22 of Law Article 314 of the Criminal Code. of Infractions Sector. and Sanctions in the Agricultural Table Function Processing crime / sanction b c d e f g h i Table 4. Continued Table a The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 29
3.6 Natural protected areas When a designated NPA includes privately owned land, restrictions on property may be imposed. According to Law No. 26834, the Natural The NPA administration authority will promote Protected Areas Law, NPAs are continental or the execution of agreements with the landowners marine regions of the territory recognized and so that their rights are guaranteed. In addition, the established as such due to their importance for the law indicates that although rights existing before conservation of biodiversity and their contribution the creation of NPA are still valid, the exercise of to the country’s sustainable development.97 NPAs property rights must be done in harmony with the are based mostly on a criterion of biodiversity objectives and purposes of the NPA.100 representativeness, which leaves aside important areas that are not representative. NPAs are part of Here it is important to note that the creation of the “natural heritage” and thus the government Municipal Conservation Areas is forbidden, which has the constitutional duty to promote and protect means that local governments have no power to them.98 The areas recognized as NPAs are part of create NPAs or similar figures. the public domain, which is why they cannot be transferred to private parties upon their designation MINAM has the power under the National as a protected area.99 The natural condition of Environmental Management System to develop, NPAs is to be kept in perpetuity; the government implement, monitor and evaluate national regulates the use and exploitation of the resources environmental policy applicable to all levels of located within them (see Table 5). government. For this, the directing council of SERNANP has the power to create national NPAs that are part of the National System of NPA policy and propose it to MINAM. The NPAs (SINANPE) are created by Supreme Decree, management directorate of NPAs also proposes endorsed by MINAM. However, the reduction policies for NPA management to the SERNANP or modification of NPAs can only be approved directing council. by law passed by the National Congress. Private conservation areas are created by ministerial SERNANP is the authority in charge of resolution at the request of the landowner. administrating NPAs. It may retain third parties to support their management and administration. The NPAs are classified as follows: law provides that the State recognize and promote • Those that are part of SINANPE, characterized private participation in NPA management. as spaces with high significance and importance Thus, SERNANP may enter into administration for the nation, highlighting the quality of the contracts with nonprofit legal entities for a biodiversity values they contain. maximum period of 20 years101 and has the power • Regionally administered Regional Conservation to modify or terminate such contracts. These Areas consist of areas that, despite having contracts do not undermine SERNANP's powers ecological importance, do not contain the of oversight, regulation and sanction within NPAs. biodiversity needed to belong to SINANPE. It is important to mention that administration These areas are directly administrated by contracts will be assessed every five years or every regional governments. time the master plan is revised. Administration • Private Conservation Areas are complementary contracts are granted through a public tender conservation areas that may be created at the conducted by SERNANP.102 request of landowners. They are created by ministerial resolution of MINAM for a period On the other hand, Regional Conservation Areas of 10 years. are administrated by the corresponding regional government, while private conservation areas are administrated by the private owner of the land.103
97 Article 1 of the NPA Law. 100 Article 4 and 5 of Law No. 26834. 98 According to article 68 of the Political Constitution of 101 Article 17 of the NPA Law and 117 of the NPA Law Peru, “The State is obligated to promote the conservation of Regulations. biological diversity and NPA.” 102 Article 119 of the NPA Law Regulations. 99 Article 1 of Supreme Decree No. 038-2001-AG, NPA Law Regulations. 103 Article 30 of the NPA Law Regulations. 30 | Patrick Wieland Fernandini and Ronnie Farfan Sousa For For i continued on next page continued The landowners apply landowners The of private recognition for conservation areas. Land-owners establish policies for their own conservationprivate areas. this purpose, the this purpose, should present landowner to an application SERNANP. Other/comments N/A N/A District N/A N/A Provincial h e Authorization for the use for ofAuthorization natural in regional resources by conservation is areas granted andthe governments regional SERNANP. Formulate, approve, control control approve, Formulate, to and manage policies related matters. environmental Natural Resources Department Resources Natural the ofproposes creation conservation areas. regional Regional N/A Headquarters of NPAs are Headquarters of NPAs the basic management units ofNPA national and administration, wherever located are They exist. NPAs any for responsible are themaintaining registry of theand authorizations keeping it updated. Deconcentrated central central Deconcentrated office a d f c g b MINAM and monitor implement, Develop, environmental national evaluate policies. the conservation and Promote resources, sustainable use of natural areas. and protected biodiversity SERNANP of SERNANP Directing Council NPA national and proposes creates MINAM. policies to Management of NPA Directorate correct policies for proposes the to of the NPAs management SERNANP Directing Council. MINAM conservation and private areas NPAs decrees by supreme created are MINAM. by endorsed conservation areas Private ministerial by recognized are resolutions. SERNANP the use for ofAuthorization natural inNPAs. the resources the use for ofAuthorization natural conservation in private resources andbyareas SERNANP is granted governments. regional Central Authorization Authorization (decision over each case) Function Policy and Policy norms Table 5. Distribution of Powers and Responsibilities Related to Natural Protected Areas Protected Natural to and Responsibilities Related 5. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 31 o collaborate collaborate n continued on next page continued The landowners establish landowners The and control their own policies. monitoring N/A The landownersThe of conservationprivate the right to have areas theiradminister own Management areas. committees Other/comments in the and administration ofmanagement NPAs. N/A N/A N/A District N/A N/A N/A Provincial m
l r Administration may be may Administration legal to private delegated demonstrate persons who skill. and management interest Natural Resource Department Resource Natural regional Administers conservation in areas with municipalities, cooperation and private local communities and public institutions. Department Resources Natural Controls and supervises with the regulation,compliance projectscontracts, and studies and to environment related usereasonable of natural resources. entity for control internal The conservation areas. regional Regional t k Control Internal Control Regional Regional Entity of the National Office. Comptroller’s Deconcentrated entitiesDeconcentrated to power have the that direct, implement and the control evaluate actions in decentralized entities. NPA headquarters NPA manage the NPA national administration. Deconcentrated central central Deconcentrated office p s
q j of MINAM u OCI Exercises internal ofExercises control control acts and external SERNANP’s at the request National of the Office. Comptroller’s acts SERNAN’s when on its own Acts indicateof illegality. evidence acts of MINAM’s Conducts control Comptroller’s when the National it. requires ministry or the Office and toReceives complaints attends orby citizens publicformulated servants. Technical body that and organizes Technical control. government develops Guides the management of regional conservationand private areas. Management through SERNANP, : Directorate Supervises and the monitors activitiesthat place take in NPAs. Supervises to compliance verify with the plan in private master conservation areas. Office Comptroller’s National Central SERNANP directly or through NPAs Administers SERNANP this, parties.third For signs contracts administration for a legal entities with nonprofit (20) period of twenty maximum years. Auditing Function Control/ monitoring Administration Table 5. Continued Table 32 | Patrick Wieland Fernandini and Ronnie Farfan Sousa continued on next page continued N/A Other/comments N/A District N/A Provincial z Natural Resources Department Resources Natural Imposes for punishment the of violation regional standardsenvironmental in conservation areas. regional Regional NPA Headquarters NPA sanctioning Exercises powers. Deconcentrated central central Deconcentrated office
aa v w cc bb y confiscation, closure, confiscation, x Entering a protected area without area a protected Entering authorization activitiesRealizing commerce without permission kindsAll or of illegal occupation invasion areas on unauthorized Movement Some as of the activities are penalized follows: • • • • anEstablishes and administers registry. offender Establishes administrative sanctions. Establishes administrative According to the Criminal Code, it it Code, the Criminal to According bemay a criminal liability when a activity an authorizes public servant the plan. opposed to with judiciary powers Coordinates of criminal signs are when there activity against NPAs. orof suspension theor licenses authorizations. Central NPA through SERNANP, Management Directorate in NPA sanctioning powers Exercises andareas conservation in private applying sanctionsareas, as fine, warning, Applies actions directly to controlled controlled to actionsApplies directly entities and public servants for byinfringements specified law. Function Processing crime/sanction Table 5. Continued Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 33 Article 4 of Legislative Decree No. 1013. No. Decree Article 4 of Legislative 1013. No. Decree Disposition of Legislative Final Second Supplemental Article SERNANP. 9 of ROF of National Article SERNANP. 23 of ROF of National Article Law. Governments 53 of Regional Article 7 of ROF of MINAM. Regulations. Law Article 71 of the NPA Article Law. Governments 53 of Regional Regulations. Law Article 71 of the NPA Article SERNANP. 3 of ROF of National Article SERNANP. 27 of ROF of National Regulations. Law Article 69.1 of the NPA Regulations. Law Article 69.2 of the NPA who are than 5 members, no fewer by formed a Management Committee have Conservation Areas and Private NPA The Regulations: Law Article 17 of the NPA Regulations. Law Article 15 of the NPA Regulations. Law Article SERNANP and Article 3 of ROF of National 6 of the NPA SERNANP. Article 144-2010-National 10 of Resolution No. Article Law. Governments 53 of the Regional 27785. Article No. 7 of Law 27785. Article No. 38 of Law Article 22 of ROF of MINAM. 27785. Article No. 41 of Law an activityArticle for by law: contrary 312. Authorization the plans or uses specified to an activityby on a project will be punished for by law contrary the plans and uses specified to favorably public servantThe or pronounces who authorizes years. to three year one and disqualified from years than four and not more years not less than two for imprisonment Unit. Tax not be higher than 10,000 may Fines 019-2010-MINAM: Article No. Decree 16 of Supreme Article SERNANP. 3 of the ROF of National Article Law. Governments 53 of Regional 1013. No. Decree Article 2 of Legislative 019-2010-MINAM. Article No. Decree 9 of Supreme Pollution: Article 304. Environmental pollution in the noise emission or radiation gas emissions, or performs toxic induces or maximum limits, discharges, regulations laws, violating Whoever, or its components, the environment cause damage or serious damage to which causes or may land or groundwater, water subsoil, soil, atmosphere, and one hundred than six years or more years not less than four imprisonment for health, will be punished by quality and environmental environmental of fine. days six hundred to or landscape: Article of the environment 313. Alteration construction or fauna, through or modifies the flora or landscape, environment the natural alters of the authority in charge, contrary provisions to Whoever, and sixty years of fine. ninety to than four days not more for imprisonment will be punished by felling or tree Table 5. Continued Table a b c d e f g h i j k l m n communities. local people and members of peasant governments, of regional representatives o p q r s t u v w x y z aa bb cc 34 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
Depending on the nature and objectives of each conservation areas. For private conservation areas, NPA included in SINANPE, they are further the owner has the power to establish the control and classified into the following categories104: monitoring policies for those areas, but SERNANP • Indirect Use: the exploitation of natural has the power to supervise the compliance of master resources is forbidden. This category includes plans in them. national parks, national sanctuaries and historical sanctuaries. In order to control the decisions made, SERNANP • Direct Use: these areas are spaces that allow the and MINAM work with the Institutional Control exploitation of natural resources in harmony Body (OCI), which is in charge of evaluating with the purposes for which they were created and controlling the activities they perform. The and observing the applicable legal limitations. OCI follows the policies imposed by the National This category includes landscape reserves, Comptroller’s Office. wildlife refuges, national reserves, communal reserves, protection forests and hunting areas. The law establishes that regional conservation 3.7 Mining Concessions areas are always of direct use. Supreme Decree No. 014-92-EM, the Mining Law, Considering the above, the rule indicates that it is the key legislation governing all mining activities is possible to exploit natural resources within an in Peru. It recognizes that actors may only exploit NPA classified as direct use. In addition, according mineral resources under the concession system.108 to article 27 of the NPA Law, the exploitation of natural resources within an NPA can only be The development of any mining activity authorized if it is compatible with the NPA master requires a concession, with the exceptions109 of plan’s zoning categories. Applications for exploiting reconnaissance,110 prospecting,111 storage112 and natural resources within these areas will be handled trading. In accordance with the Mining Law, by the authorities in charge, and the positive there are four types of concessions113: (a) mining opinion of SERNANP is required. The same applies concessions, (b) processing concessions, (c) general for regional conservation areas.105 service concessions and (d) mining transport concessions. The analysis of this section will focus All NPAs and regional conservation areas should solely on mining concessions, since they represent have a master plan,106 which is the most important the most common and relevant concessions for strategic planning document. It is important mining activities (see Table 6). to indicate that the master plan should contain the following: (a) zoning; (b) the organization, Concessions are property rights that are distinct objectives, specific plans and management programs and independent from ownership of the superficial and (c) cooperation, coordination and participation land on which they are located.114 Therefore, in framework related to the area and its buffer order to develop a mining project, the titleholder zones.107 Zoning is crucial for discerning what kind of extractive activities may be performed within the NPA. 108 Article 66 of the Peruvian Constitution and Article II of the Mining Law. SERNANP and the regional governments are the 109 Article VII of the Mining Law. respective entities in charge of controlling and supervising the activities within NPAs and regional 110 Reconnaissance is the activity aimed at revealing levels of mineralization through elementary mining. 111 Prospecting is the research aimed at identifying 104 Article 21 of the NPA Law and article 69 of the NPA potential mineral deposits by means of physical and Law Regulations. chemical indicators measured using precision techniques and instruments. 105 Article 28 of the NPA Law. 112 Storage of mineral concentrates outside the mining 106 Article 20 of the NPA Law. operation areas is considered a mining activity that does not 107 Buffer Zones are those zones adjacent to NPAs that operate under the mining concession system. require special treatment for conserving the protected area. All 113 Article 7 of the Mining Law. activities conducted in buffer zones should not compromise fulfillment of the NPA’s purposes. 114 Article 9 of the Mining Law. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 35
must obtain a title over the land through one of the sectoral authorities in charge must be consulted the following mechanisms: prior to the granting of the mining title.117 1. If the surface lands are privately owned, their use for mining activities requires The mining concession grants its titleholder the prior agreement with the landowner. If an exclusive right to explore and exploit mineral agreement cannot be reached, the titleholder resources (both metallic and non-metallic of a mining concession is entitled to apply to substances) within the area covered by the the MEM for a legal mining easement over the concession, which may range from 100 hectares to surface lands. a maximum of 1,000 hectares (concessions located 2. If the surface land is state-owned property, the at sea may extend to an area of 10,000 hectares).118 titleholder of a mining concession may apply The government is prevented from granting mining for a mining easement from MEM over the concessions in urban areas, though some exceptions barren lands where the mining activities will apply.119 In the event that a mining concession claim be developed. In this case, MEM shall submit involves areas of “urban expansion,” the provincial this application to the SBN in order for this government must issue a binding opinion and the authority to grant such easement, temporarily authority in charge must only grant the mining or permanently, over the state lands. concession if a positive response is granted.120 3. Also, if the surface land is state-owned property, the titleholder of a mining MEM is in charge of the mining sector. Its concession may only acquire it if the project mandate is to ensure sustainable development of has been officially declared by the authorities the mining activities, as well as promote private as a project of national interest. In such case investment. Through its General Directorate a request to purchase the land from the State Bureau (DGM), MEM rules and promotes must be submitted to the SBN. It is important activities to assure the rational use of the to mention that if the surface land is state- mineral resource. MEM’s General Directorate owned, the State may also give it in usufruct of Mining Environmental Matters (DGAAM) to the titleholder of a mining concession for regulates the environmental aspects of mining a period of time, and the titleholder of the projects, including approval of Environmental mining concession shall pay an amount of Impact Assessments. money to the State as a consideration fee for the usufruct right. MEM’s Geological, Mining and Metallurgical 4. If the surface land is owned by a peasant Institute (INGEMMET) is an autonomous community, the following rules apply in order decentralized public agency of the Mining Sector to sell, rent, lease or perform any other act in charge of granting and terminating mining of disposal of it: (a) for peasant communities concessions for the development of medium- located in the coast, a favorable vote of no less and large-scale mining. It is also responsible for than 50% of members attending the assembly managing the national concession register and geo- is required and (b) for peasant communities scientific information. located in the highlands and jungle, a favorable vote of at least 2/3 of all members of Although there are 5 INGEMMET offices (besides the community is required. the main one in Lima), in Arequipa, Cusco, Madre de Dios, Trujillo and Puno, all concession It is important to note that mining activities applications submitted in such offices are re- are restricted in some areas, such as: (i) natural directed to INGEMMET-Lima for evaluation protected areas and their buffer zones,115 (ii) special and approval. project areas, (iii) archeological sites, (iv) areas reserved for tourism and (v) urban areas.116 Thus, if a mining concession is requested in such areas,
117 Article 21 of Supreme Decree No. 018-90-EM. 118 Article 11 of the Mining Law. 115 Article 88 of Supreme Decree No. 038-2001-AG. 119 Article 1 of Law No. 27560. 116 Article 2 of Law No. 27560. 120 Article 2 of Law No. 27560. 36 | Patrick Wieland Fernandini and Ronnie Farfan Sousa Other/ comments N/A N/A N/A continued on next page continued e f District N/A Local Governments Local urban In areas, the promote sustainable use of the natural resources. Make the local environmental policy. N/A l c d Provincial/Local Local Governments Local urban In areas, the promote sustainable use of the natural resources. Make the local Make the local environmental policy. Provincial Municipalities binding Issue opinions regarding the of granting mining concessions of urban in areas expansion. N/A b k Regional Promote the sustainable Promote use of the natural resources. Make the regional policy. environmental Regional Governments Regional Governments Regional mining and grant Evaluate titles concession processing artisanal for and small-scale mining. N/A Deconcentrated central central Deconcentrated office N/A INGEMMET Redirects the applications miningfor of concessions medium- and large-scale mining to INGEMMET in Lima. office N/A
i j g o
h m n a President of the Republic President Establishes theof concessions, mining termination to thebyaccording causes given the mining law. Central MEM and proposes applies approves, Elaborates, the applicable to regulations the policies and mining sector. The the ofAuthorizes acquisition Mining Concessions (this areas in authorization border by foreigners the mining property is when be requested shall borders). 50within kilometerslocated of Peru’s MEM service, general and processing, grants Evaluates and mining transport titles. concession and the to start grants authorization Evaluates / activities. restart and exploitation exploration INGEMMET for titles mining concession and grants Evaluates medium- and large-scalemining. MEM Manages the by submitted titleholder affidavits of mining concessions their regarding activities Manages mining statistics. INGEMMET andManages register thegeo- concession national information. scientific Managesand the distributes mining good and penalty payments. standing fee Function Policy and Policy norms Authorization Administration Table 6. Distribution of Powers and Responsibilities Related to Mining to Concessions and Responsibilities Related 6. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 37 Other/ comments N/A N/A continued on next page continued v District Local Environmental Environmental Local Monitoring Institutions Monitor with compliance the environmental of regulations mining activities, with functional from independence OEFA. N/A
u Provincial/Local Local Environmental Environmental Local Monitoring Institutions Monitor with compliance the environmental of regulations mining activities, with functional from independence OEFA. N/A
t on s t i u sti t n g I n i r o t on i Regional Monitors compliance with the environmental of mining regulations activities, with functional independence from OEFA. Regional Environmental Environmental Regional M N/A Deconcentrated central central Deconcentrated office OSINERGMIN deconcentrated are There OSINERGMIN offices ofin Peru, each region in ofwhich are charge supervising the legal and aspectstechnical related to ofsafety the mining activities. OEFA deconcentrated are There in 18 of OEFA offices ofregions the different in which are country, ofcharge supervising compliance environmental mining activitiesby within its jurisdiction. N/A p q r w s Central MEM Monitorsthewith Mining compliance regulations. OSINERGMIN Supervises the legal and aspects technical related ofto safety theactivities. mining OEFA Supervisesobligations the environmental mining activities. applicable to Ministry of Labor Supervisesobligations the labor-safety of the mining activities. Office Comptroller’s National Supervises, the and verifies monitors actions and of results public management. Internal Control Entity of the MEMx Internal Control of audit of the procedures of the internal In charge the Ministry. theAudits financial statements. Ministry’s Office reports toDelivers the General Controller’s actions. of its control on the results Function Control/ monitoring Auditing Table 6. Continued Table 38 | Patrick Wieland Fernandini and Ronnie Farfan Sousa Other/ comments N/A District N/A Provincial/Local N/A Regional N/A Deconcentrated central central Deconcentrated office N/A y bb aa z Central OSINERGMIN Imposes sanctions inofof case (technical) breach mining facilities. to related obligations safety OEFA Imposes sanctions in case of of breach mining to related obligations environmental activities. Ministry of Labor of labor-safety of breach sanctions in case Imposes obligations. MinistryPublic a crime for has regulated Criminal Code The any right an authorization or grant officials who with the without complying resources natural over laws. environmental Article 4 of the ROF of the MEM. Article Law. Governments 9 of the Regional Article 141 of the Municipalities Law. Article 73 of the Municipalities Law. Article 141 of the Municipalities Law. Article 73 of the Municipalities Law. Article 98 of the ROF of the MEM. Articles 2, 4.13 and 4.14 of the ROF of the INGEMMET. Article 18 of the ROF of INGEMMETROF. 757. No. Decree Article Constitution, Article 71 and Legislative 71 of the Peruvian 020-2012-EM. Article No. Decree 5 of Supreme 27560. Article No. 2 of Law Article 105 of the ROF of the MEM. Article 4.8, 4.22 and 4.23 of the ROF of the INGEMMET. Article 4.24 of the ROF of the INGEMMET. 25962. Article No. Decree 16 of Law 054-2001-PCM. No. Decree III of Supreme V of Chapter Title 29901, Article 26734, articleArticle 3° and No. 4 of Law No. 5 of Law 003-2010-OEFA/CD. and Resolution No. 001-2010-MINAM No. Decree 29325, Supreme No. Law 005-2012-TR. 29901, Articles No. 29783, ArticleDecree 2 and 123 of Supreme No. 2 of Law No. Disposition of Law Second Complementary Final 29325. Articles No. 4 and 7 of Law 29325. Articles No. 4 and 7 of Law 29325. Articles No. 4 and 7 of Law 27785. Articles No. 3 and 6 of Law Articles 29 and 27 of the ROF of the MEM. 054-2001-PCM. No. Decree IV of Supreme V of Chapter Title 29901, Article 26734, Article 3 and Article No. 3 of Law No. 5 of Law 003-2010-OEFA/CD. and Resolution No. 001-2010-MINAM No. Decree 29325, Supreme No. Law 29901, Article 005-2012-TR. 29783, Article 2 and Article No. No. 2 of Law Decree No. 123 of Supreme Disposition of Law Second Complementary Final Article 314 of the Criminal Code. Function Processing Processing crime/sanction Table 6. Continued Table a b c d e f g h i j k l m n o p q r s t u v w x y z aa bb The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 39
On the other hand, there is a special regime established that for the three years following its applicable to miners who qualify as artisanal121 or passage in July 2014, fines may not be applied small-scale.122 Miners who obtain this qualification unless particular conditions are met. Moreover, and intend to apply for a mining concession must even in these circumstances, only up to half of do so with the corresponding regional government the maximum allowable fine may be applied. (with jurisdiction over the requested area), which Second, OSINERGMIN is in charge of supervising is responsible for evaluating and approving the compliance with the regulations on mining safety. mining title. Additionally, regional governments Finally, the Ministry of Labor is in charge of are responsible for supervising the development supervising compliance with labor regulations on of mining activities in the region. Given that occupational health and safety matters. these institutions have sometimes been abused by individuals who did not actually qualify, the law now enables OEFA to unveil the use of artisanal or small- 3.8 Hydrocarbon Rights scale mining façades to escape national control.123 Pursuant to Law No. 26221, the Hydrocarbons Law As part of the process of granting a mining (known as HOL), PERUPETRO S.A. was created concession, the concession applicant is required as a state-owned company subject to private law and by INGEMMET or the regional government to put in charge of promoting, negotiating, executing publish an announcement in two newspapers by and supervising the agreements for the exploration which the mining concession request in a certain and production of hydrocarbons in Peru. area becomes public knowledge. As a result, any third party (such as citizens, NGOs or peasant In accordance with Article 8 of HOL, the communities) that considers that the granting of hydrocarbons “in situ” (at their source) are owned such title affects his/her rights is entitled to submit by the Peruvian State, which in turn "transfers" an opposition recourse (recurso de oposición) with ownership of the extracted hydrocarbons to the authority in charge, which will adjudicate PERUPETRO so it can execute agreements for the dispute. exploring and producing such hydrocarbons with private entities (see Table 7). Also, SERNANP could intervene during the process of granting a mining concession should the For the purposes of executing agreements, area requested for that concession overlap with an PERUPETRO may either call for a public bidding NPA. It will issue a binding technical opinion that round or negotiate directly with the private is required to grant the mining title. oil companies.
Regarding supervision of the mining industry, To be entitled to bid in a public tender, negotiate there are three responsible authorities. First, and execute an agreement with PERUPETRO, OEFA is in charge of supervising and enforcing an oil company first needs to be (a) qualified by environmental laws. It has the faculty to sanction PERUPETRO as a “petroleum company” that violations to environmental regulations with meets the technical, economic, financial and fines up to approximately US$42 million124 and experience requirements to operate in a certain area other ancillary measures. However, Law 30230 (also known as a “block”), and (b) registered as a qualified petroleum company at the hydrocarbons 121 Artisanal mining is considered a subsistence activity public registry. Once the company is granted and the special regimen is applicable for those miners who the qualification certificate by PERUPETRO, it hold up to 1,000 hectares of mining concessions with a may request inclusion by MEM as a contractor limited production and/or processing capacity. Article 2 and (petroleum company) in the hydrocarbons 10 of Law No. 27651. public registry. 122 The special regimen for small-scale mining is applicable for those miners who hold up to 2,000 hectares of mining 3.8.1 Hydrocarbon agreements concessions with a limited production and/or processing capacity. Article 2 and 10 of Law No. 27651. As provided by Article 10 of HOL, upstream 123 See Article 17, Law No. 30011. activities (exploration and production) may be 124 According to Supreme Decree No. 007-2012-MINAM, conducted by petroleum companies under license the maximum typified fine is up to US$14 million. However, agreements, service agreements or other contracting the Congress later passed Law No. 30011 stating that the maximum fine allowable was US$42 million. forms authorized by MEM. 40 | Patrick Wieland Fernandini and Ronnie Farfan Sousa N/A Where the Where rightscollective of Indigenous and Communities Native be affected might a hydrocarbon by and/or exploration project,exploitation the Peruvian government, through must PERUPETRO, and consult inform such communities about the project issuing the before decree supreme authorizing the of thesigning or servicelicense agreements. Other/comments continued on next page continued Approves the local Approves plans development and local territorial management. private Promotes in projects investments of local interest. and Promotes planning coordinates local development for and territorial management. private Promotes in projects investments of local interest. approves, Formulates, and monitors executes local policies and plans regarding the environment with in accordance and regional national, policies and provincial plans. N/A District Approves the provincial the provincial Approves territorial reconditioning urbanplan, identifying of urban areas areas, of areas expansion, or safetyprotection risks, natural due to and areas agricultural protection environmental areas. and coordinates Promotes local planning for and development territorial management. private Promotes in projects of investments local interest. approves, Formulates, and monitors executes local policies and plans regarding in the environment with national accordance policies and and regional plans. N/A Provincial b Formulates, approves, approves, Formulates, controls, assesses, executes, directs and manages the plans and policies related in the hydrocarbons to with in accordance region, policies and plans. national projects for Fosters of the exploitation hydrocarbons. and evaluates Inventories the hydrocarbons resources. and promotes Prepares socio-environmental needed assessments of the development for activities, hydrocarbon and environmental and sustainable protection programs. development Regional Governments, Governments, Regional the Regional through and of Energy Directorates Mines N/A Regional N/A N/A Deconcentrated Deconcentrated office central f d c e a PERUPETRO S.A. to engagecompanies able and qualifies the Evaluates or servicein license Agreements. area. of the contracted the delimitation Proposes to assign agreements and finalizes Negotiates the extracted hydrocarbons over ownership (service a company hire or to agreements) (license agreements). the for a public participationPerforms procedure and inform or public bidding phase to negotiation actions project and related the hydrocarbons explain the local population. to authorities. with other government Coordinates with SERNANP is mandatory during theCoordination is a protected or bidding stage if there negotiation within the block and with Ministryarea of Culture and / or in isolation indigenous populations are if there initial contact. indigenous and to Conducts the prior consultation issuance prior to when applicable, communities, native the Agreements. approving Decrees of Supreme MEM and applies proposes approves, up, Draws the applicable to the policies and regulations Policy Energy such as National sector, hydrocarbon 2010-2040. Central Authorization Authorization (decision over each case) Policy and Policy norms Function Table 7. Distribution of Powers and Responsibilities Related to Hydrocarbon Rights Hydrocarbon to and Responsibilities Related 7. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 41 N/A N/A Other/comments continued on next page continued N/A N/A District N/A N/A Provincial N/A N/A Regional
l PERUPETRO’s PERUPETRO’s offices decentralized N/A at Tarapoto, Cusco, Tarapoto, at Pucallpa Iquitos, supportand Talara the supervision of the agreements’ they (i.e., execution can make visits to the contractors’ check sites, operation with on the progress to commitments local populations, and coordinate of the work evaluation methods employed the contractor by adverse avoid to socio- environmental impacts). Deconcentrated Deconcentrated office central h g 5 Ministry and Mines, Ministry of Energy of Economy of the Republic and the President and Finances of Peru and the block shall be terms Agreements’ The the by signed Decree Supreme by approved the Ministries and endorsed by of of Peru president and Finance. and MinesEnergy and of Economy PERUPETRO S.A. hydrocarbon of upstream the database Administers be or to activities, which includes the blocks awarded activities. upstream for awarded Ministry and Mines of Energy laws. the hydrocarbon In of enforcing charge PERUPETRO S.A. it its SupervisionThrough Management Agreements, with respect supervises of the agreements execution obligations. and administrative both technical to causes specified in each agreement, to According guaranteeing the bond letters execute it may the for program minimum work the committed in interests apply moratorium phase, exploration terminate of royalties, in the payment case of delay an arbitration (to and request the agreement depending on each agreement) panel or a judge, from of damages and harm derived the payment noncompliance. Central Control/ monitoring Administration Function Table 7. Continued Table 42 | Patrick Wieland Fernandini and Ronnie Farfan Sousa Other/comments continued on next page continued District Municipality Entity Internal Control Conducts the internal subsequent control the districtto acts government’s as and operations, as the external well the by required control control government entity. District Provincial Municipality Provincial Entity Internal Control Conducts the internal subsequent control the provincial to acts and government’s as the as well operations, required external control the government by entity. control Provincial Regional Government Government Regional Entity Internal Control Conducts the internal the to subsequent control acts of the and operations as government, regional as the external control well the control by required entity. Regional
n
m q are in charge of in charge are supervising the legal aspectsand technical of safety to related the hydrocarbon activities within its area. geographical Deconcentrated of OEFA offices Deconcentrated Deconcentrated of offices OSINERGMIN in charge are of supervising environmental with compliance the hydrocarbon activities within its area. geographical implements Directs, the and evaluates actions control in decentralized including entities, and district provincial municipalities under its competences. Regional Control Control Regional Offices Deconcentrated Deconcentrated office central p o k i j PERUPETRO will form S.A. and the contractor a supervision PERUPETRO’s (led by committee supervisionagreements manager) which, among both parties will allow other purposes, exchange to assess the the operations, regarding information programs work of the minimum exploration execution verify to program works and annual exploitation of the operations the execution and coordinate the to related with all obligations and compliance by or agreed in the agreement foreseen operations both parties in another document. OSINERGMIN Supervises to aspects the legal and technical related activities. of the hydrocarbon safety OEFA applicable obligations Supervises the environmental activities. the hydrocarbon to Ministry of Labor Supervises of the obligations the labor-safety activities hydrocarbons Entity Control Government Supervise, the acts and verify monitor and operation of public servants and institutions. Entity of PERUPETROInternal Control the to subsequent control Conducts the internal acts of PERUPETRO as and operations S.A., as well the Government by required the external control Control Office. Alerts ex-officio the Ministry and of Energy Mines of illegality, evidence is reasonable when there acts in PERUPETRO’s omission or unfulfillment and decisions. by public filed and deals with complaints Receives servants and citizens. Entity MEM Internal Control the to subsequent control Conducts the internal as the external as well acts and operations, ministry’s Entity. Control the Government by required control Alerts ex-officio is the when there Minister omission or of illegality, evidence reasonable acts of the ministry’s level in any unfulfillment and decisions. by public filed and deals with complaints Receives servants and citizens. Central Function Auditing Table 7. Continued Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 43 N/A Other/comments N/A District N/A Provincial N/A Regional N/A Deconcentrated Deconcentrated office central s t r v u PERUPETRO S.A. of incompliance for the Agreements terminate May assumed. commitments OSINERGMIN Imposes sanctions of (technical) in case of breach facilities. hydrocarbon to related obligations safety OEFA Imposes sanctions of in case of breach obligations. environmental Ministry of Labor Impose sanctions of labor-safety in case of breach obligations. MinistryPublic public a crime for has regulated Criminal Code The right servants or any an authorization who grant with the without complying resources natural over laws. environmental Central Articles 3 and 4 of Law No. 26221, Articles 5 and 6 of Law No. 25962, Article 4 of Supreme Decree No. 031-2007-EM and Article 9 of Supreme Decree No. 043-2007-EM. 031-2007-EM and Article No. Decree 25962, Article 9 of Supreme No. Decree 26221, Articles 4 of Supreme Articles No. 5 and 6 of Law No. 3 and 4 of Law 037-2007-EM. No. Decree 021-2006-PCM and Supreme No. Decree 27783, Supreme 27867, ArticleArticles No. 36 of Law No. 10, 45 and 59 of Law 093-2012. of PERUPETRO of Directors 030-2004-EM and Resolution of the Board No. 26221, Article No. Decree Articles 2 Supreme No. 6, 8 and 14 of Law 012-2008-EM. No. Decree Supreme Articles 571-2008-MEM-DM. 21, 22 and 23 of Resolution No. 350-2012-MEM/DM. 001-2012-MC and Ministerial Resolution No. No. Decree 29785, Supreme No. Law 26221. No. Law 26221. Article No. 3 of Law 054-2001-PCM. No. Decree IV of Supreme V of Chapter Title 2990. ArticleArticle 26734, Article 3 and 26221, Article No. 3 and 5 of Law 3 of Law No. 5 of Law 002-2011-MINAM. No. Decree and Supreme 001-2010-MINAM No. Decree 29325, Supreme No. 26221, Law Article No. 87 of Law 005-2012-TR. 29901, Articles No. 29783, ArticleDecree 2 and 123 of Supreme No. 2 of Law No. Disposition of Law Second Complementary Final 093-2012. of PERUPETRO of Directors Resolution of Board No. 459 - 2005 OS/CD. Articles 46 Resolution 45 And No. 022-2009-MINAM. Articles NO. Decree 42 OF Supreme 41 And 27785. Articles No. 3 and 6 of Law Articles 29 and 27 of the ROF of the MEM. 054-2001-PCM. No. Decree IV of Supreme V of Chapter Title 29901, Article 26734, Article 3 and Article No. 3 of Law No. 5 of Law 26221. Article No. 70 of Law 054-2001-PCM. No. Decree IV of Supreme V of Chapter Title 2990, Article 26734, Article 3 and Article No. 3 of Law No. 5 of Law 002-2011-MINAM. No. Decree and Supreme 001-2010-MINAM No. Decree 29325, Supreme No. 26221, Law Article No. 87 of Law 29901, Articles 29783, ArticleDecree 2 and 123 of Supreme No. 2 of Law No. Disposition of Law Second Complementary Final 005-2012-TR. No. Article 314 of the Criminal Code. Processing Processing crime/sanction Function a b c d e f g h i j k l m n o p q r s t u v Table 7. Continued Table 44 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
In a license agreement, the petroleum company 3.8.2 Agreements approval procedure (licensee) is granted authorization to explore and/or produce the hydrocarbons located inside Once the company and PERUPETRO have agreed the block at its own expense and risk. Pursuant on the terms and conditions to be included in to this agreement, PERUPETRO transfers the agreement, its draft must first be approved ownership rights of all the hydrocarbons by the PERUPETRO Board of Directors. Then produced to the licensee, which must pay a PERUPETRO will request the following from the cash royalty to the Peruvian State. Currently, Peruvian government: this is the type of agreement preferred by • Approval of the extension, delimitation, location and PERUPETRO and the Peruvian government. name of the block to be explored and/or exploited. • Approval of the agreement's terms and conditions. In a service agreement, PERUPETRO hires • Authorization to sign the agreement. Figure 2 the petroleum company (service provider) to describes the procedure in detail. conduct exploration and exploitation activities in the block. The service providers are paid If any information is missing or additional information by PERUPETRO with retribution for their is required, MEM or MEF will require PERUPETRO services subject to the volumes of hydrocarbons to complete it; if there is any legal or technical change produced. The compensation may be paid in to the agreement's conditions or to the technical, kind or in cash. legal or economic report, the government will request that PERUPETRO send a new agreement or amend These agreements are governed by private law the report. In cases in which PERUPETRO does not and, once approved by the Peruvian government agree with an observation made by the MEM or MEF, and executed, may only be amended by written it will send to such entities a legal-technical report agreement between the parties, which also must detailing the reasons why it considers such observation be approved by the Peruvian government. unfounded and will insist on approval of the agreement.
PERUPETRO
Board of Directors approves draft Agreement
General Manager signs draft Minister of Energy and Mining Agreement and les it to the Presidency of the Republic rati es the Supreme Decree Bill Ministry of Energy and Mining with its annexes
President rati es and signs the Ministry of Energy and Mining Ministry of Energy and Mining Supreme Decree
Direction of Promotion and Management of Liquid Minister of Economy and Hydrocarbons Concessions Finances rati es the Supreme Publication of Supreme Decree issues Technical Report Decree Bill with its annexes
Normative Direction of Legal Counsel O ce evaluates License Agreement or Agreement Hydrocarbons issues Legal previous reports and issues a Final Modi cation Report report
Legal Counsel O ce collects reports Direction of Public Revenue Policy evaluates the Legal Report from the Ministry of Energy and Vice Ministry of Energy reviews Mining and issues a report project
General Secretary Ministry of Economy and Finances
Figure 2. The approval process for hydrocarbon agreements The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 45
3.8.3 Rights of the petroleum contracting MINAGRI is responsible for regulating and company related to land use and other promoting the sustainable use and conservation resources of forest resources, through the DGFFS. This directorate proposes policy and norms for the According to Articles 31 and 83 of HOL and Title VII administration, control and promotion of the of the regulations approved by Supreme Decree No. forest resources’ sustainable use and conservation, 032-2004-EM, the petroleum company contracting and proposes and formulates the norms for with PERUPETRO has the right to freely access and granting concessions or authorizations. OSINFOR extract from the block; and if necessary, it may request also has the power to propose legal norms related that MEM grant by supreme resolution rights of way to supervision and control activities. or easements for the use of public or private lands. Regional governments have the power to Said regulations state that in case of concurrent formulate, approve and execute policies in agrarian requirements for the same area (between the matters of their region. It is important to note requested easement and any other mining-energy that provincial and district authorities do not have right), MEM will have to decide which right powers regarding forest resources, nor may they supersedes the other. grant rights over forest concessions.
In exceptional cases, the petroleum company may The Forestry Law recognizes two types of request that MEM expropriate the lands owned concessions127: forestry concessions for timber by private entities that are inside the block or are products and forest concessions for NTFPs. necessary for the operations. If MEM considers that such requests should proceed, the expropriation will The power to regulate forest concessions has recently be considered of public and national interest and been transferred to some regional governments. For will be formalized in accordance with the applicable example, Ucayali, San Martín, Amazonas, Tumbes, legislation, as stated by article 84 of HOL. La Libertad, Ayacucho and Loreto have these powers as of early 2014.128 Said regional governments A petroleum company may only explore for or may now grant permits, authorizations and forest produce hydrocarbons, and not any other natural concessions, as well as promote and control resources that may be found within that specific area. compliance with national forest policy.129 They Exceptionally, minerals may be exploited if this is have created or will create a directorate in charge of authorized in the agreement. However, the petroleum agrarian matters. For example, in Madre de Dios company has the right to use the water, wood, gravel this directorate is the Administración Técnica de and other materials for construction necessary for its Flora y Fauna Silvestre/ Technical Wildlife and Flora operations, provided it does not affect the existing or Administration and in Loreto it is the Programa future rights of third parties and that it respects the Regional de Flora y Fauna Silvestre / Regional Wildlife legislation in force. and Flora Program.
Today, the powers related to forest and wildlife are 3.9 Forestry Concessions exercised by the DGFFS. It is, however, important to mention that as of July 14, 2014, these are The Forestry Law indicates that natural forests, forest assumed by SERFOR.130 As a result, SERFOR will plantations and lands that have the capacity for forestry act as the DGFFS as of that date and the latter will production and forest protection are considered forest disappear. The government offices with powers and resources.125 The use of forest resources is subject to responsibilities related to forestry concessions are concession rights, which enable the use of natural described in Table 8. forestry resources. Forest concessions may not be awarded to third parties in territories of native and peasant communities. Also, no concession will be granted for non-timber forest products (NTFP) if 127 The “Forestry Concessions” reference includes both a previous right to use forest resources in the area types of concessions. is proposed.126 128 Supreme Decree No. 011-2007-AG approves transfer of powers from INRENA to Regional Governments. 129 Article 51 of Regional Governments Law. 125 Article 2 of the Foresty Law. 130 Article 1 of Supreme Decree No. 126 Article 109, 1) of Supreme Decree No. 014-2001-AG. 001-2014-MINAGRI. 46 | Patrick Wieland Fernandini and Ronnie Farfan Sousa Other/ Comments N/A N/A N/A continued on next page continued District N/A N/A N/A Provincial N/A N/A N/A in k f b d
Regional of Directorate Regional Agriculture approves, Formulates, directs and executes, the region’s controls matters, policies on agrarian to national according forestry policy. of Directorate Regional Agriculture concessions forest Grants in inside areas the regions been functionswhere have transferred. regions where functions where regions been transferred. have of Directorate Regional Agriculture and supervisesAdministers the of management activities. agricultural Regional Directorate of Directorate Regional Agriculture control activities,Exercises in strict with compliance forestry policynational j Deconcentrated Office Deconcentrated of OSINFOR Supports, within limits, geographic the and monitoring of the forest control concessions. Deconcentrated Deconcentrated office central N/A Technical Forestry Management Units Deconcentrated carry that offices out functions in regions. Forestry Technical Technical Forestry Management Units Deconcentrated conduct that offices functions in regions. to Communicates office the central of OSINFOR any infringement of the use and conservation resources. of forest a through the through g e c For this, OSINFOR will have a record of legal orOSINFOR a record this, have For will i Forest Concessions Regulation and Control Concessions of Forest h -directorate natural persons that are accredited to implement this function. this implement to accredited are that persons natural Central MINAGRI, DGFFS through and wild fauna, with activitiesConducts the administration of forest the object of conservation and exploitation. MINAGRI, through DGFFS through MINAGRI, modifies or cancels rights through given recognizes, Grants, concessions. authorizations or forest OSINFOR (Supervision Office Concessions), Forest of , through DGFFS , through MINAGRI control, policies and the administration, norms for Proposes andmanagement promotion of conservationand use sustainable of resources. forest concessions. of forest the granting for guidelines and Establishes rules the of implementation forestry policynational Coordinates with governments. regional and with policies. regulations compliance level, national at Evaluates, to the authorities legal norms to related supervisionProposes of natural resources. Sub the norms that to procedures forest regulate Proposes related andconcessions norms to sanction the of and declare expiration the concession. all regions, over concessions DGFFS hasThe forest theto grant power to governments. the regional the transferred for powers except accordingyears, every entities specialized five to Monitors through the contracts. concession Directorate of Forest Concession Monitoring of Concession Forest Directorate concession with the forest compliance and evaluates Inspects contracts. Policy and Policy norms Function Administration Authorization (decision over each case) Control/ monitoring Table 8. Distribution of Powers and Responsibilities Related to Forestry Concessions Forestry to and Responsibilities Related 8. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 47 Other/ Comments N/A District N/A Provincial N/A Regional The OCI of the Regional The Government in the regions only Audits functionswhere related been forestry have to transferred. of Directorate Regional Agriculture sanctioning Exercises where in regions powers forestry to functions related been transferred. have n p Deconcentrated Deconcentrated office central Deconcentrated Deconcentrated of OSINFOR Offices to Communicate office the central of OSINFOR any to infraction related or forestry resources conservation. Support in the of coercive execution actions. Regional Control Control Regional Entity Deconcentrated power bodies with the to direct, implement the and evaluate actions in control entities. decentralized l o Concession Monitoring: Concession of Forest the Directorate m Central National Comptroller’s Office Comptroller’s National Organizes control. and government develops OCI of MINAGRI of ministrycontrol internal at andExercises externalcontrol operations, Office. the request Comptroller‘s National ofthe evidence onindicate operations Acts its when the own entity’s of illegality. OSINFOR, through sanctioningExercises powers. given of the theDeclares expiration right of resources use of forest when the holder does Concessions Forest notthrough fulfill the of theconditions contract. in case of criminal charges Judicial Power, Art. crimes shall 310 forest that states ofbe Code punishedthe Penal imprisonment ofwith than not orthan less years more six three years, person who any for days, of forty eighty to service with community part or in without permit, in whole forest burns or damages destroys, by the authoritygranted orauthorization concession license, in charge. Article 58 of the ROF of MINAGRI. Article Law. Governments 51 of Regional Article 5.1.11 of ROF of MINAGRI. Article Law. Governments 51 of Regional Article 58 of the ROF of MINAGRI. Article Law. Governments 51 of the Regional 1085. No. Decree Legislative Article 40 of the ROF of OSINFOR. Article Law. 6 of the Forestry Article 50 of the ROF of OSINFOR. Article Law. Governments 51 of the Regional 27785. Articles No. 7 and 8 of Law Article 18 of the ROF of OSINFOR. 27785. Article No. 38 of Law Article 40.8 of the ROF of OSINFOR. Article 50 of the ROF of OSINFOR. Auditing Processing Processing crime/ sanction Function b c d e f g h i j k l m n o p Table 8. Continued Table a 48 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
3.9.1 Forest concessions for timber Concessions for conservation and environmental products services
These concessions are granted for the use of forest These are granted for the development of biological resources in Permanent Production Forests (BPP), conservation project diversity and ecosystem services. which are areas with primary natural forests available There are 38 concessions for conservation in the to individuals preferably for the use of timber regions of Amazonas, Cusco, Ica, Junín, Loreto, and other forest resources.131 BPPs are created by Madre de Dios, Pasco, Piura, San Martín, Tumbes ministerial resolution of MINAGRI. Concession and Ucayali.134 Concessions for environmental rights are granted for a renewable period of forty services have not been granted (ad hoc regulations years. These rights are granted in a public tender to were not approved). small and medium-size entrepreneurs when the area is between 5,000 and 10,000 hectares, while a public OSINFOR is the entity in charge of supervising auction applies when the area is between 10,000 and and controlling fulfillment of concession contracts. 40,000 hectares. It may contract third parties through a public tender for monitoring and supervision, which are These processes are conducted by conducted every five years. DGFFS has the general PROINVERSION or the regional government. power to verify the conservation and sustainable use The DGFFS or the regional government will sign of natural resources. When the DGFFS performs the concession contract with the successful bidder. control activities and identifies non-compliance with the concession contract, it must communicate 3.9.2 Forest concessions for non-timber this information to OSINFOR. The regional forest products132 governments also have the power to exercise control activities in those regions that have received Concessions for NTFPs agrarian powers.
These are granted for the utilization of forest A breach of forest regulations can lead to products other than timber, such as collecting administrative infractions. The entity in charge leaves, flowers, fruits, seeds and other products (OSINFOR or regional governments, depending for industrial and/or commercial use. These on the case) has the power to sanction the concessions are granted on permanent production titleholder with up to 600 tax units135 and forests or protected forests. In the latter case, the impose additional sanctions such as confiscation; felling and destruction of forest resources are revocation of the authorization, permit or license; outlawed. According to OSINFOR’s website, there and contract termination. DGFFS, the regional were 1,008 NTFP concessions as of late 2013. governments or SERFOR maintains a register of Concessions for NTFPs are exclusive, meaning that legal and natural persons sanctioned for Forestry other concessions, authorizations or permits may Law violations. There may also be criminal not be granted on the same land. implications, as illegal activities in forests are considered crimes. In such cases, the entity in Concessions for ecotourism charge is the judiciary.
These concessions grant the right to exploit the In order to control the administration's decisions, natural landscape as a resource. According to OSINFOR and MINAGRI work with OCI, which the forest registry, there are 5 concessions for is the body in charge of evaluating and controlling ecotourism in the regions of Ancash, Cusco, these agencies. OCI has the following functions: Ica, Junín, Loreto, Madre de Dios, Tumbes (a) to perform control activities of the Ministry’s and Ucayali.133 operations, when the National Comptroller’s Office
131 http://dgffs.minag.gob.pe/index.php/ordenamiento-y- 134 Forest Concessions Register prepared by the Direction manejo-ffs/ordenamiento-forestal of Information and Supervision of Forestry and Wild Fauna. 132 Article 10 of the Forestry Law. 135 Article 365 and 363 of Supreme Decree No. 014- 133 Forest Concessions Register prepared by the Direction 2001-AG.UIT: Tax Unit. For the year 2013, the UIT was of Information and Supervision of Forestry and Wild Fauna. equivalent to S/.3,700 or approximately US$1,370.00). The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 49
or the ministry requires it; (b) to receive and detailed in the Forest Law.140 These inconsistencies attend to the complaints formulated by citizens or are now corrected in the new Forestry Law (to public servants; and (c) to perform audits. come into force in 2015), which clearly states that neither agro-industrial crops nor agro-energy crops are considered forest plantations,141 and thus are 3.10 Oil Palm not forestry resources.142
The cultivation of oil palm does not require obtaining any concession right or permit from 3.11 Road infrastructure and MINAGRI, since agro-industrial activities are not concessions under a concession system. However, an entity must hold the rights to the land where the oil An infrastructure concession is the administrative palm is to be developed. MINAGRI’s only role right by which the State grants the execution or is to promote the sustainable development of exploitation of certain public infrastructure works such activities and monitor compliance with the to foreign or national legal persons for a period national agricultural policy.136 of time.
To promote sustainable development of the The Ministry of Transport and Communications Amazon and the recovery of deforested lands, (MTC) has established a hierarchy in the the government issued Supreme Decree No. roads network: 015-2000-AG on May 7, 2000, through which • The national road network, which corresponds the installation of oil palm plantations was to roads of national interest, is made up of the declared of “national interest” in areas with land main longitudinal and transversal axes that vocation for plantations of such species. Article constitute the base of the Sistema Nacional 3 of the aforementioned regulation stated that de Carreteras / National Highways System the DGFFS of MINAGRI will determine the (SINAC). It works as a receptive element of "deforested areas" with potential to develop regional and rural roads. oil palm plantations. Such areas could be • A regional road network is made up of the roads granted to persons or companies through a that connect the national road network and the concession right. To date MINAGRI has not rural road network. established such areas. • The rural road network is made up of the local roads. Its main function is to link the capital of According to the Forestry Law, oil palm is a the province with the capital of the district, and plantation species137 so may be cultivated in these with population centers or zones of local areas classified as “forests for future use,” which influence as well as with the national and regional are lands being developed to produce timber networks.143 products and other forest services138 through the granting of permits and authorizations by the At the national level, the authority in charge of DGFFS or regional governments. Yet, while there the transport sector is the MTC. Pursuant to Law is no explicit regulation, oil palm is an agro- No. 27181, this ministry: (a) grants concessions, industrial monocrop that degrades the land and permits or authorizations for the provision of should be developed in areas with land vocation services under its terms of purview, (b) administers for plantations of permanent crops139 that do and maintains the national road infrastructure that not fit within the Forestry Land Use Planning has not been privatized and (c) has normative and auditing powers (see Table 9).
136 Article 4 of the ROF of MINAGRI. 137 Article 29 of the Forest Law. 140 Article 8 of the Forest Law. 138 Article 8 of the Forest Law. 141 Article 11 of Law No. 29763. 139 Article 9.1(b) of the Regulation of Classification of 142 Article 5 of Law No. 29763. the Land by its Vocation, approved by Supreme Decree No. 017-2009-AG. 143 Article 4 of Supreme Decree No. 017-2007-MTC. 50 | Patrick Wieland Fernandini and Ronnie Farfan Sousa continued on next page continued The powers granted to granted powers The OSITRAN to supervise public transport must investments be established in the Otherwisecontract. the supervise would the MTC concession. Other/comments N/A N/A l q District OSITRAN Supervises public transport infrastructure investments. N/A District Local Governments rehabilitate, Build, andmaintain the road improve underinfrastructure their jurisdiction. N/A f . p k Provincial Provincial Provincial Governments and give Authorize over concessions transport ground areas in saturated also They or roads. permissions or grant authorizations in non- or areas saturated in conformity roads, with the respective regulations national decentralized Provias Manages and rural administers public and regional infrastructure projects. OSITRAN Supervises public transport infrastructure investments. N/A i o e j Regional Regional Governments Regional Manage andthe administer plans and policies regarding transport inregional issues, with nationalaccordance policies and sectoral plans. decentralized Provias Manages and administers public and regional rural projects. infrastructure N/A Governments Regional public Approve transport projects. infrastructure Governments Regional In of charge controlling, the managing monitoring and and transport road regional activities. infrastructure Deconcentrated Deconcentrated office central N/A N/A Provias decentralized N/A c h n m g b a d Central MTC and draftsapproves policies Proposes, normsand or technical administrative applicable the road to infrastructure sector. MTC Controls and detects infractions in public transport infrastructure services and investments. OSITRAN public transport Supervises investments. infrastructure MTC the authorizations for Grants of publicprovision services and grants concessions. PROINVERSION of granting entity in charge The PPPauthorizations for investments. MEF authorizationsHas to grant the power thecase in public budget is being used. In case the is concession already be would the concessionaire granted, ofin administration. charge MTC In of charge a and dministering and roads national maintaining infrastructure. PROVIAS In of charge andadministering projects infrastructure managing for network. road the national Control / Control monitoring Function Policy and Policy norms Administration Authorization (decision over each case) Table 9. Distribution of Powers and Responsibilities Related to Road Infrastructure and Concessions to and Responsibilities Related 9. Distribution of Powers Table The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 51 Other/comments The powers granted to to granted powers The superviseOSITRAN to the public transport must be investment established in the Otherwisecontract. the supervise would the MTC concessions. v District District Governments authorized to Are transport audit undermatters their jurisdiction, with in accordance given the provisions by the provincial government. N/A u Provincial Provincial Provincial Governments authorized Are to audit the of concession road granted infrastructure by the provincial governments of its respective jurisdiction . N/A t s Regional Regional Governments Regional the audit authorized to Are road ofmanagement regional and transport infrastructure activities. Office Comptroller’s National is government regional The subject to the permanent Congress, auditing of the the and the Regional Council authorityThe with citizens. to audit isRegional the powers which Internal Entity, Control depends functionally and onorganically the Government Entity. Control N/A Article 16 of Law No. 27181. Article No. 16 of Law 046-2007-PCM. Article No. Decree 32 of Supreme 27867. Article No. 56 of Law 046-2007-PCM. Article No. Decree 32 of Supreme 046-2007-PCM. Article No. Decree 32 of Supreme 27181. Article No. 16 of Law 27867. Article No. 56 of Law Articles Law. Governments 75 and 76 of the Regional 27181. Article No. 17 of Law 27181. Articles No. 18 of Law 27181. Article No. 16 of Law N. 046-2007-PCM. Decree Supreme m n o p q r s t u v w x Deconcentrated Deconcentrated office central N/A N/A r x w Central MTC of auditing the In charge concessions granted. MTC In of sanctioning charge in case of infractions. OSITRAN impose sanctions to in Authorized case of non-compliance with legal the from emanating obligations contract. concession Article 57 of Supreme Decree No. 021-2007-MTC. 021-2007-MTC. Article No. Decree 57 of Supreme 27181. Article No. 16 of Law 1012. No. Decree Article 14 of Legislative 1012. No. Decree Article 9 of Legislative 27867. Article No. 56 of Law 27181. Article No. 17 of Law 27181. Article No. 16 of Law 033-2006-MTC. Article No. Decree 1 of Supreme 27867. Article No. 56 of Law 029-2006-MTC. Article No. Decree 3 of Supreme 029-2006-MTC. Article No. Decree 3 of Supreme 27181. Article No. 18 of Law Function Processing crime / sanction Auditing b c d e f g h i j k l Table 9. Continued Table a 52 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
The supervising agency that regulates the In accordance with article 18 of the Municipalities investment in transport infrastructure is Law, the district governments have powers (a) in transit the Supervising Body of Public Transport matters, where they may manage and audit under their Infrastructure Investment (OSITRAN). This body jurisdiction, in accordance with the given provisions is in charge of regulating and sanctioning by the provincial governments, and (b) in road infringements through fines or suspension orders. matters, where they handle installation, maintenance It establishes the tariff of the services and activities and renovation of the transit signaling systems in under OSITRAN terms. This agency is also in accordance with national regulations. Additionally, charge of verifying compliance with the legal, district governments are the authorities in charge of contractual or technical obligations of the suppliers building, rehabilitating, maintaining and improving and other companies that perform activities within the road infrastructure under their jurisdiction. the scope of its purview, ensuring that adequate services are provided to the users. Public private partnerships (PPPs) are employed by the government to promote investment. PPPs are According to article 56 of the Regional the means by which private investment participates Governments Law, regional governments (a) have in infrastructure projects where the State cannot normative, management and auditing powers completely finance them alone. in transport affairs, (b) may formulate, approve, perform, evaluate, manage, control and administer There are different kinds of promoting bodies. For the plans and policies in regional transport issues example, in the case of the national government, in accordance with national policies and sectoral the private investment promoting institution is plans, and are able to (c) plan, manage and develop the Agency of Promotion of Private Investments regional road infrastructure, properly prioritized (PROINVERSION) for the projects that are in the plans of the regional development and (d) assigned based on their national importance. The supervise and audit the management of regional ministries may also promote investments through road and transport infrastructure activities. investment committees. Regional and local governments may also promote private investment. Pursuant to Article 17 of the Municipalities Law, provincial governments (a) have normative, It is important to mention that private investments management and auditing powers in transport are not the only way to improve road infrastructure. affairs, (b) are able to establish a hierarchy on the The State is also able to improve the road network road networks in its jurisdiction, (c) may grant infrastructure through PROVIAS and PROVIAS concessions for ground transport in saturated areas Descentralizado. PROVIAS is a project created or roads and (d) have the power to grant permits or by the MTC, which implements construction, authorizations in non-saturated areas or roads, in improvement and rehabilitation projects for accordance with the respective national regulations. the national roads network. The main objective of PROVIAS is to provide users an efficient In terms of auditing powers, the regional transportation means that contributes to the governments are able to (a) supervise, detect economic integrity of the country. PROVIAS infractions and impose sanctions for non- Descentralizado is in charge of executing compliance with transport and ground transit construction, improvement and rehabilitation laws and regulations, (b) regulate fees by projects for rural or regional road infrastructure. Its granting permits or authorizations for the use of main purpose is to develop and enforce institutional non-saturated infrastructure areas or roads, in capacities and decentralized management of rural accordance with the respective national regulations and regional transport. The National Institute for the and (c) audit road infrastructure concessions Defense of Competition and Intellectual Property granted by the provincial governments in their (INDECOPI) must ensure the excellence of services respective jurisdictions. provided to the users. 4 Bibliography of legislation cited
2013 Ley 30011, Ley que modifica la Ley 2009 Decreto Supremo 017-2009-AG, 29325, Ley del Sistema Nacional de Reglamento de Clasificación de Tierras Evaluación y Fiscalización Ambiental / por su Capacidad de Uso Mayor / Law 30011, Law that modifies Law 29325, Regulation of Land Classification by the National Environmental Oversight its Vocation System Framework Law 2008 Decreto Legislativo 1089, Decreto 2012 Decreto Supremo 001-2012-MC, Legislativo que establece el Régimen Reglamento de la Ley del derecho a la Temporal Extraordinario de consulta previa a los pueblos indígenas u Formalización y Titulación de Predios originarios, reconocido en el Convenio Rurales / Legislative Decree for the creation 169 de la Organización International del of the Extraordinary Temporary Rural Land Trabajo (OIT) / Regulations of the law Formalizing and Titling Regime of the right of indigenous or native people 2007 Ley 29158, Ley Orgánica del Poder to prior consultation, recognized in ILO Ejecutivo / Executive Power Law Convention 169 2007 Ley 29029, Ley de la Mancomunidad 2012 Decreto Supremo 017-2012-AG, Municipal / Municipal Associations Law Reglamento de Infracciones y Sanciones 2007 Ley 29151, Ley General del Sistema Ambientales del Sector Agrario / Nacional de Bienes Estatales / National Regulations of Agrarian Environmental System of State-owned Assets Law Infractions and Sanctions 2005 Ley 28511, Ley General del Ambiente / 2011 Ley 29763, Ley Forestal y de Fauna General Environment Act Silvestre / Forestry and Wildlife Law 2005 Decreto Supremo 008-2005-PCM, 2011 Proyecto de Ley 786-2011/CR, Ley de Reglamento de la Ley Marco del Sistema Promoción de Mecanismos de Retribución Nacional de Gestión Ambiental / por Servicios Ecosistémicos, / Law of Regulations of the National Environmental Promotion of Retribution Mechanisms for Management System Framework Law Ecosystem Services 2004 Decreto Supremo 087-2004-PCM, 2011 Ley 29768, Ley de Mancomunidad Reglamento de ZEE / ZEE Regulation Regional / Regional Associations Law 2004 Ley 28245, Ley Marco del Sistema 2010 Decreto Supremo 008-2010-MINAM, Nacional de Gestión Ambiental / Programa Nacional de Conservacion de National Environmental Management Bosques para la Mitigación del Cambio System Framework Law Climático / National Forestry Conservation 2003 Ley 27972, Ley Orgánica de Program for Climate Change Mitigation Municipalidades / Municipalities Law 2010 Decreto Supremo 013-2010-AG, 2003 Ley 28056, Ley Marco del Presupuesto Reglamento para la Ejecucion de Participativo / Participatory Budget Levantamiento de Suelos / Regulations for Framework Law soil survey 2002 Ley 27867, Ley Orgánica de Gobiernos 2009 Ley 29379, Ley que modifica la legislación Regionales / Regional Government Law en material de regionalización / Law that 2002 Ley 27783, Ley de Bases de la modifies the regionalization legislation Descentralización / Decentralization Law 54 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
2002 Ley 27806, Ley de Transparencia y Acceso de la Costa / Coast Communities Land a la Información Pública / Transparency Titling Law and Access to Public Information Law 1997 Ley 24657, Declaran de necesidad 2002 Ley 27785, Ley Orgánica del Sistema nacional e interés social el deslinde Nacional de Control y de la Contraloría y la titulación del territorio de las General de la República / Organizational Comunidades Campesinas / Law that Law of the Comptroller General’s Office of declares the Native Communities land titling the Republic of public need and social interest 2001 Decreto Supremo 014-2001-AG, 1994 Ley 26300, Ley de los Derechos de Reglamento de la Ley Forestal y de Fauna Participación y Control Cuidadano / Law Silvestre / Regulation of the 2000 Forest and of Citizen Participation and Control Rights Wildlife Law 1993 Constitución Política del Perú / 2001 Ley 27506, Ley del Canon / Canon Law Peruvian Constitution 2000 Ley 27308, Ley Forestal y de Fauna 1993 Ley 26221, Ley Orgánica que norma Silvestre / 2000 Forestry and Wildlife Law las actividades de Hidrocarburos en el 2000 Decreto Supremo 015-2000-AG territorio nacional / Hydrocarbons Law Declaran de interés nacional la instalación 1992 Decreto Supremo 014-92-EM, Texto de plantaciones de palma aceitera, Unico Ordenado de la Ley General de / Declaration of national interest in Minería / Mining Law establishing oil palm plantations 1991 Código Penal / Criminal Code 1999 Ley 27181, Ley General de Transporte y 1991 Decreto Legislativo 653, Ley de Tránsito Terrestre / Transport Law Promoción de las Inversiones en el 1997 Ley 26834, Ley de Áreas Naturales Sector Agrario / Agrarian Investment Protegidas / Natural Protected Areas Law Promotion Law 1997 Ley 28261, Ley Orgánica para el 1984 Código Civil / Civil Code Aprovechamiento Sostenible de los 1978 Decreto Ley 22175, Ley de Comunidades Recursos Naturales / Natural Resources Act Nativas y de Desarrollo Agrario de la Selva 1997 Ley 26845, Ley de Titulación de las y de Ceja de Selva / Law for indigenous Tierras de las Comunidades Campesinas peoples in the Amazon Appendices
Appendix 1. Distinctions between the powers of provincial and district governments
Specific Powers of the Provincial Specific Powers of the District Municipalities Municipalities Land Use Planning To approve the Land Preparation plan at a To approve the urban or rural district plan, provincial level, which identifies urban and as appropriate, according to the provincial urban expansion areas, as well as the areas for provisions on the matter. protection, agriculture and conservation. To prepare and maintain the district cadaster. To decide on territorial demarcation activities implemented in the province. Provision and trade of To set norms for ambulatory trade. To promote the construction and goods and services To regulate the rules regarding collection, maintenance of food markets to satisfy the distribution, storage and trading of food and needs of the residents of their jurisdiction. beverages, in accordance with the related To conduct the control of weights and national laws. measures, as well as the hoarding, profiteering and adulteration of products and services. Citizen Safety To establish a citizen safety system, with the To coordinate with the civil defense participation of civil society and the national committee of the jurisdiction on the police body. measures to be executed in order to attend victims in natural disaster events. To coordinate the civil defense tasks in the To establish the registry and control of province. the residents’ associations that collect or administer local assets Local Economic To simplify administrative procedures for Development obtaining licenses and permits in the area of their jurisdiction. To arrange with public and private sectors the preparation and execution of support programs for the local economy. Social and Defense To plan and promote social development in Programs and Rights their jurisdiction, in harmony with national and Promotion regional policies and plans. To regulate the actions of the Municipal Defenders of Children and Adolescents, DEMUNA, adapting national rules to the local social reality. 56 | Patrick Wieland Fernandini and Ronnie Farfan Sousa
Appendix 2. Referential list144 of public participation mechanisms in environmental assessment
Sector Legal Framework Authority Activity Applicable Mechanism of Public Participation
Mining Supreme Decree The DGAAM of Exploration Environmental Impact Statement (DIA): Np. 028-2008-EM the MEM Activities Workshop with the participation of the Ministerial population located in the project’s influence Resolution No. area. 304-2008-MEM- Presentation of the environmental studies. DM Semi-detailed Environmental Impact Assessment (EIAsd): Workshop with the participation of the population located in the project’s influence area. Presentation of the environmental studies. Publication of ads in newspapers and on radios. Exploitation Detailed Environmental Impact Assessment Activities (EIAd): Public Participation Plan. At least three workshops before, during and at closure. One public hearing will be held at the time and in the place determined by the authority. Information office or participatory environmental monitoring. Guided tours. Hydrocarbons Supreme Decree The DGAAE Assessment and EIAsd: No. 012-2008-EM of the MEM: development of Public Participation Plan together with the EIA Ministerial The authority Environmental Terms of Reference. Resolution No. responsible Studies. for conducting Workshop after submitting environmental 571-2008-MEM- studies to DGAAE. DM the Citizen Participation Public hearings after submitting the process for the environmental studies to DGAAE. development EIAd: and Public Participation Plan together with the EIA evaluation of Terms of Reference. Environmental Impact Studies. Workshops before and after submitting the environmental studies to DGAAE. Public hearings after submitting the environmental studies to DGAAE. Voluntary mechanisms: Observations mailbox. Guided visits. Information office. Dissemination of information through radio, newsletter or tv.
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144 This list is only to be used as a broad reference. The distribution of powers and responsibilities affecting forests, land use, and REDD+ across levels and sectors in Peru | 57
Appendix 2. Continued Sector Legal Framework Authority Activity Applicable Mechanism of Public Participation
Electricity Ministerial The DGAAE of Before and during DIA: Resolution No. the MEM: the development Make available to the public the content of the 223-2010-MEM- The authority and evaluation Environmental Impact Statement. DM of environmental in charge of EIAsd: the public impact studies. participation After the submitting of the EIAsd, workshops process. will be held. Public hearings are compulsory during the evaluation phase. EIAd: During and after the preparation of EIAd, the implementation of workshops in the influence area will be compulsory. Public hearings are compulsory during the evaluation phase. Agriculture Supreme Decree The DGAAA of DIA: No. 018-2012-AG MINAGRI: Workshops are obligatory during the evaluation The entity in of DIA. charge of the Observation Mailboxes. orientation EIAsd: and direction of citizen The DGAAA will determine if it is appropriate to participation perform public hearings. related to the When DGAAA has determined that it is not agrarian sector suitable to hold a public hearing, it would be activities.a obligatory to hold workshops. Observation mailboxes. Public hearings are compulsory in the evaluation phase. EIAd: Workshops are obligatory during the evaluation phase. Public hearings are compulsory in the evaluation phase. Observation mailboxes. a Article 3 of Supreme Decree No. 018-2012-AG.
ISBN 978-602-1504-99-4 DOI: 10.17528/cifor/005649
CIFOR Occasional Papers contain research results that are significant to tropical forest issues. This content has been peer reviewed internally and externally.
Which levels of government hold powers over forests and land use in Peru? Which powers and responsibilities are centralized, and which are decentralized? What role can citizens play?
This report reviews the statutory distribution of powers and responsibilities across levels and sectors. It outlines the legal mandates held by national, regional and local governments with regard to land and forests, including titling, forest concessions, oil and minerals investments, road infrastructure, oil palm plantations, conservation, land use planning, and more. The review considers national legislation as of 2014 and incorporates important reforms in early 2015.
The first section describes the decentralization process, including mechanisms for public participation. The second section outlines sources of revenue available to different government levels and new legislation on payments for environmental services. The third section details the specific distribution of powers and arenas of responsibility related to multiple land use sectors across levels and among offices within levels. Summary tables are included for each different policy arena to facilitate analysis across government levels and functions: policy making, authorizations, administration, control and monitoring, auditing and sanction.
The study was commissioned under CIFOR’s Global Comparative Study on REDD+, as part of a research project on multilevel governance and carbon management at the landscape scale. It is intended as a reference for researchers and policy makers working on land use issues in Peru.
This research was carried out by CIFOR as part of the CGIAR Research Program on Forests, Trees and Agroforestry (CRP-FTA). This collaborative program aims to enhance the management and use of forests, agroforestry and tree genetic resources across the landscape from forests to farms. CIFOR leads CRP-FTA in partnership with Bioversity International, CATIE, CIRAD, the International Center for Tropical Agriculture and the World Agroforestry Centre.
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Center for International Forestry Research (CIFOR) CIFOR advances human well-being, environmental conservation and equity by conducting research to help shape policies and practices that affect forests in developing countries. CIFOR is a member of the CGIAR Consortium. Our headquarters are in Bogor, Indonesia, with offices in Asia, Africa and Latin America.