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Reclaiming Collective Rights Land and Forest Tenure Reforms in Peru (1960–2016)

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Reclaiming Collective Rights Land and Forest Tenure Reforms in Peru (1960–2016) WORKING PAPER 224 Reclaiming collective rights Land and forest tenure reforms in Peru (1960–2016) Iliana Monterroso Peter Cronkleton Danny Pinedo Anne M. Larson Working Paper 224 Reclaiming collective rights Land and forest tenure reforms in Peru (1960–2016) Iliana Monterroso CIFOR Peter Cronkleton CIFOR Danny Pinedo Universidad Nacional Mayor de San Marcos Anne M. Larson CIFOR Center for International Forestry Research (CIFOR) Working Paper 224 © 2017 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/ DOI: 10.17528/cifor/006426 Monterroso I, Cronkleton P, Pinedo D and Larson AM. 2017. Reclaiming collective rights: Land and forest tenure reforms in Peru (1960–2016). Working Paper 224. Bogor, Indonesia: CIFOR. CIFOR Jl. CIFOR, Situ Gede Bogor Barat 16115 Indonesia T +62 (251) 8622-622 F +62 (251) 8622-100 E [email protected] cifor.org We would like to thank all funding partners who supported this research through their contributions to the CGIAR Fund. For a full list of CGIAR Fund Donors please see: http://www.cgiar.org/about-us/our-funders/ 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 Acknowledgements v Executive summary vi 1 Introduction 1 2 Historical precursors of current Amazonian tenure debates 3 3 First transition period (1969–1979): Moving toward the formalization of indigenous collective rights in the Amazon 6 3.1 Political context of reforms 6 3.2 Changes in the institutional framework 7 3.3 Outcomes 7 4 Second transition period (1980–2009): Shifting emphasis toward individual rights to promote investment and away from indigenous rights 10 4.1 The context of reform: Formalization of individual property rights and the promotion of investment activities in the Amazon 10 4.2 Changes in government institutions 11 4.3 Outcomes 12 4.4 Bagua: contesting collective tenure regimes in the Amazon 16 5 Third transition period (2009–present): Toward reclaiming collective tenure rights after Bagua 18 5.1 The post-Bagua context: Changes for indigenous peoples 18 5.2 Economic policy reforms: More of the same 19 5.3 Outcomes 20 6 Analyzing remaining challenges 23 7 Conclusion 26 References 27 List of figures, tables and boxes Figure 1 Progress and pending claims in the formal recognition of collective rights in Peru 24 Tables 1 Percent of total forest under different tenure regime types in Peru 2 2 Early policies affecting tenure in the Amazon (1898–1968) 4 3 Key changes in regulations during the formalization of collective rights to land and forests in the Amazon (1969–1979) 9 4 Key changes in regulations around the formalization of individual property rights and the promotion of investment affecting titling of native communities in the Amazon (1980-2009) 14 5 Key reforms affecting tenure in the Amazon after 2009 21 v Acknowledgements We thank the European Commission, the Global Environment Facility, The International Fund for Agricultural Development (IFAD) and Food and Agriculture Organization (FAO) for supporting this work. We also wish to thank Steve Lawry, Safia Aggarwal and Hector Cisneros for review and comments. This work was undertaken as part of the CGIAR Research Programs on Policies, Institutions, and Markets (PIM), led by the International Food Policy Research Institute (IFPRI), and Forest, Trees and Agroforestry (FTA), led by CIFOR. This working paper has not gone through IFPRI’s standard peer-review procedure. The opinions expressed here belong to the authors, and do not necessarily reflect the views of CIFOR, PIM, IFPRI, CGIAR or the financial sponsors. vi Executive summary Since 1974, Peru has formalized property rights for 1,200 indigenous communities in the Amazon. These titled indigenous lands cover over 11 million hectares and represent approximately 17% of the national forest area. Progress has been possible due to multiple reforms that recognized indigenous rights to collective lands, a process characterized by complex and protracted conflicts among competing interests, shifting government priorities and continued resistance by indigenous people to contest efforts that undercut their interests. Although the government initiated these changes more than 50 years ago, implementation continues in a context that is highly convoluted and misunderstood. This working paper traces historical elements to illustrate the multifaceted trajectory of reforms affecting collective tenure rights over land and forests in the Peruvian Amazon. This paper is a product of a global comparative study that is analyzing how statutory reforms have devolved collective rights to local people in key national contexts including Uganda, Indonesia and Peru.1 This paper identifies key moments and trends in Peru that have influenced changes in regulations and policy frameworks and produced varied outcomes in implementation. We analyze how regulations have modified the content of rights granted to indigenous communities and the extent to which the recognition and formalization of these rights has been implemented. We discuss key contextual elements to understand political priorities related to land and forest tenure, competing social actors involved in reform debates, as well as the mechanisms for recognizing indigenous rights claims to forests and land. We identified three transition periods over the past 50 years (1960s–2016) during which reforms have modified the regimes that frame indigenous collective rights to land and forests in the Peruvian Amazon. During the 1970s, significant policies for the recognition of indigenous rights in the Amazon mark the first key transition period, providing a foundation for understanding collective tenure reform in the Amazon. In 1974, the Law of Native Communities and Agrarian Regional Promotion in the Lowlands Forests and Valleys was the first legislation that recognized explicitly Amazonian indigenous groups as entitled to legal protection and recognition, as well as to collective land rights. A year later, the Peruvian government introduced regulations targeting forest resources for the first time. The Forest and Wildlife Law centralized the control of forests, formalizing the ownership of forest resources as state property. Under this framework, no individual, community or company could own forestlands but instead could only access forest resources through a contract system. These regulatory changes codified a dichotomy between agrarian and forest lands that has negatively influenced the titling of indigenous lands ever since. These changes have meant that, while areas claimed as native community lands are all demarcated, communities must still wait for results from soil analysis that define the best use of land as either forest, agricultural or pasture lands. Based on results from soil laboratory analysis, areas classified as agricultural will be granted under an agrarian land title and those classified as forests will be granted under usufruct contract. These are two separate processes that follow distinct procedures involving different government institutions. During the second transition period, between 1980 and 2009, the government stressed the formalization of individual property rights as a means to promote agricultural development and investment in the Amazon. Although regulations that focused on the recognition and titling of indigenous communal lands in force since the 1970s remained the same, changes in the institutional framework deemphasized their implementation. Shifts in land tenure and forest policies during this period changed legal frameworks and the governmental institutions responsible for recognizing, 1 http://www.cifor.org/gcs-tenure/ vii demarcating and titling communities. In practice, these overlaps and gaps also made it difficult for communities to comply with procedures and to understand which institutions were responsible for the recognition of land and forest rights, as recognition involved multiple agencies at different government levels. This confusion created other problems, such as the allocation of resource extraction rights for timber or mining in the same areas demarcated as property or for use by communities. By the late 2000s, decentralization had progressed, and subnational governments gained responsibility for recognizing and titling native communities. Nevertheless, the transfer of responsibilities to these subnational authorities was slow and confusing, and lacked the necessary financial and human resources to ensure implementation. The lack of a unified land registry exacerbated these problems. In 2009, a confrontation between indigenous peoples and police authorities during a protest against forest regulations in Bagua resulted in the death of 33 people and marked the peak of unrest. Bagua was a turning point and created momentum for efforts to reclaim indigenous tenure rights; this marks the beginning of the third transition, which started in 2009 and continues today. It is characterized by renewed interest in indigenous rights in the Amazon as part of the discussion and negotiation of climate change goals, which has brought collective rights issues back into the policy arena. Advocates for indigenous rights have been able to promote changes in the institutional framework to improve implementation practices for property rights recognition. This paper
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