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PERU
Ancestral lands in danger
6/11/2008
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Legislative decree facilitates

One of the conditions for Peru´s free trade agreement with the United States is that Peru promote private investment in the agricultural sector. Eager for the pact, the second of its kind in South America after the Chile-US free trade agreement, to go into effect, Peru´s president has approved a measure to reduce the approval percentage by indigenous or campesino community members required to sell or concede their lands in the highlands and jungle.

A May 20 legislative decree by President Alan García aims “to promote and facilitate private investment in these communal territories."

It states that for lands owned for more than one year, the community´s general assembly -- a meeting that does not include all members of the community -- must have a vote of no less than 50 percent of those present in favor of ceding the land in question. This overturns the previous measure that required a two-thirds vote of the whole community -- not just those present at the general assembly-- in favor of selling the lands.

This implies that “non-landholding community members and third parties” can do what they want with the communal lands since only a 50 percent vote in favor is necessary. Furthermore, this 50 percent does not need to include the landholding community members, but only those who are attending the assembly, which runs the risk of letting a minority outside of the community make decisions that affect the entire community.

Land for extractive companies
Laureano del Castillo, lawyer and researcher from the Peruvian Center for Social Studies said in an interview with La Revista Agraria that “by using a delegation of powers in order to modify the legislation, the conditions are being changed so that communities can give up their lands. But it’s not clear how they will benefit when a minority can now take important decisions on the land, which is the communities’ greatest asset today.”

García, along with the business sector, welcomed the measure by saying that “there is no need to establish different conditions than those on the coast because they are mestizos and different from the sierra Indians, since that would be a form of selective racism.”

The norm relates to an article that García published in October of last year in one of the most important local newspapers, El Comercio, which said that “there are true campesino communities, but also artificial communities that have 200,000 hectares [500,000 acres] in writing but who only use 10,000 hectares [24,700 acres] for agriculture while the rest is idle, in ‘dead hands,’ while its inhabitants live in extreme poverty and wait for the state to give them help instead of making their hills and lands valuable.”

García adds in his article that “in order to have investment, safe property is necessary, but we have fallen into the trap of giving small lots of land to poor families that have not one cent to invest, thus apart from the land, they have to ask the state for fertilizers, seeds and irrigation technology in addition to protected prices. This mini-plantation and technology-lacking model is a vicious cycle of misery; we must promote medium properties, the agricultural middle class that knows how to get resources, look for markets and can create formal work.”

The Andean Coordinating Group of Indigenous Organizations (CAOI) stated in a press release that the decree “fails to recognize the quorum required by all legal norms.”

The CAOI warned about the seriousness of the risk that communities will run “because the extractive companies that invade communal territories can ‘legally’ appropriate these lands by rigging ‘assemblies.’”

Unconstitutional action
The Peruvians Ombudsman’s Office said that the decree is unconstitutional and that it violates the International Labor Organization Convention on Indigenous and Tribal Peoples, ratified by Peru in 1993.

The Convention states that “peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.”
 
Meanwhile, the Peruvian Constitution establishes that “the campesino and native communities have a legal existence and are a legal entity. They are autonomous in their organization, in communal labor and in the use and free distribution of their lands as well as economic and administrative use of their lands, within the legal framework established. The ownership of their lands is a non-lapsable action, except in the case of abandonment.”

The decree also infringes on the indigenous communities’ right to be informed and consulted on issues regarding their land, which is included in the United Nations Declaration of the Rights of Indigenous Peoples, approved on Sept. 13, 2007 and promoted by countries with an important indigenous presence, like Guatemala, Mexico and Peru.

The Ombudsman’s Office says that the decree “weakens the enforced protection that the Constitution gives indigenous land as communal asset by permitting that the administration of communal lands may be decided by a minority in a simple assembly,” adding that the communities have “less protection than the shareholders in a legal entity.”

It similarly believes that “the administration of communal lands must only be carried out with a vote by the majority of the community inhabitants,” meaning more than 50 percent of the inhabitants inscribed, not only the assembly attendants.

According to the National Agrarian Confederation and the Campesino Confederation of Peru, there are 5,680 campesino communities in the sierra and more than 1,300 in the jungle who have 76 percent of Peru’s arable lands. The leaders of the organizations announced that they will collect signatures along with other organizations such as the Inter-Ethic Development Organization for the Development of the Peruvian Jungle, in order to argue the decree unconstitutional before the country’s Constitutional Court. 
—Latinamerica Press.


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