Government legislative decrees may threaten indigenous land rights
18 February 2017
The scandals surrounding Odebrecht and its bribing of senior politicians and officials has tended to obscure serious analysis of the 112 legislative decrees passed by the executive in the 90 days leading up to 6 January. However, in seeking to promote investment, the economic measures passed also had implications that affect communities living in areas under concession for mining and hydrocarbon exploitation.
Indigenous and human rights organisations have assessed the implications of some of these decrees for the most vulnerable populations. Red Muqui, Cooperacción and CAAAP (the Centro Amazónico de Antropología y Aplicación Práctica) have analysed a number of directives. Here we seek to provide readers with an overview of some of the main concerns resulting (See analysis from: Red Muqui, CAAAP, Cooperacción):
Decree No. 1333: this decree prioritises the facilitation of infrastructure projects of “national interest” or of “gran envergadura” by creating a “Special Project for Access to Land for Investment Priority Projects” within the remit of the Agency for the Promotion of Private Investment (Proinversión). Proinversión will have three years to execute this project. Its brief is to take the necessary steps to obtain legal control of territories (saneamiento físico legal) identified for private investment. This includes the need to “identify and recognise diverse forms of possession, occupation, land titling and land tenure for territories needed to execute investment projects, or identify if these territories are private or state property”. Furthermore, the decree grants Proinversión the ability to “define the need for the reallocation of communities, to coordinate with the necessary entities and to call for (communal) assemblies”. CAAAP and Red Muqui argue that these provisions violate international principles that prohibit the reallocation or displacement of indigenous communities without community consent. They fail to recognise the right of communities alone to convene assemblies, a role recognised in the constitution.
Decree No. 1320: This decree modifies the Mining Law with respect to the payments companies need to make to ensure they preserve their concession rights, even when they are not carrying out extraction activities. According to Cooperacción, prior to the introduction of this decree, as per the Mining Law, companies had to pay the equivalent of 10% of minimum annual production levels required per hectare. The concession then was withdrawn if the site remained inactive for 15 consecutive years.
Under Decree 1320, the concession is only withdrawn after 30 years and the amount of payment companies need to incur is reduced substantially. The company starts paying 2% in the 11th year, 5% from the 16th and 10% only from the 21st year of non-extraction. As Ana Leyva has pointed out “this decree does not contribute to simplify, optimise or eliminate administrative procedures, nor to regulate or facilitate activities for economic development (…) What it does is to allow [those companies] that don’t want to or can’t invest to maintain a concession for a long period of time without using it”. This may lead to speculation at the time of selling. It may also present an obstacle for formalising illegal mining as it will reduce the number of unused sites that can be granted for formal mining. For Red Muqui, this decree may also encourage illegal mining in that many illegal miners are operating in concessions that are not being used by the companies that own the concession and have allowed informal miners to operate on such land instead.
Decree No. 1292: This decree aims to help the Northern Peruvian pipeline operate securely by declaring its operations to be of “public necessity and national interest”. The decree also provides for the reorganisation and modernisation of Petroperú.
It is clearly of great necessity that the pipeline is restored and properly maintained to avoid the devastating effects that recent oil spills have had in the Amazon region. However, as CAAAP highlights, some potential unwanted effects from this decree may arise, particularly in relation to land occupation. The decree gives the state the ability to acquire all the necessary land (terrenos) for the development of operations in relation to the northern Peruvian pipeline, including obtaining the issue of sales contracts and contracts for land transfer or granting land use permits to private owners. This, according to Richard O’Diana from CAAAP, may pose a threat to indigenous communities’ territories. Further, there is a risk that this decree may be used in parallel with Art. 70 of the Peruvian Constitution, which allows for land expropriation in cases of public necessity. Given that the northern Peruvian pipeline has been declared as such, CAAAP fears that expropriation is a possibility that cannot to be discarded, even if prohibited by international law.
Richard O’Diana makes a good point when he says that all these decrees cannot only be analysed from the standpoint of economic development, but need to take fully into account the environmental, social and political ramifications for them to become acceptable and therefore sustainable.