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PERU: Indigenous Groups Challenge Private Investment Decree

Milagros Salazar

LIMA, May 29 2008 (IPS) - More than 5,000 indigenous and peasant communities in Peru launched a petition drive this week with the aim of getting President Alan García’s decree promoting private investment in communally owned land declared unconstitutional.

Legislative decree 1,015, approved by García on May 20, makes it possible for indigenous communities in the country’s highland and jungle regions to authorise the sale or lease of communal land to private investors with the votes of just 50 percent plus one of the members of the community assemblies.

The new law modifies legislation on private investment that required the consent of two-thirds of the qualified members of the village assembly to sell or lease land.

Now the votes of only a simple majority in village assemblies, who no longer must be duly qualified members, are needed.

Five peasant and indigenous organisations have joined together to challenge the decree in the Constitutional Court and hold a series of protests and other activities.

The demonstrations will begin Jun. 4 in Lima and will reach their peak Jun. 22-24 in the highland and Amazon jungle regions, and a national farmers’ strike will be held Jul. 8-9, say the organisers.


“We must not allow further abuses, and can’t let them sell our land by imposing new laws that we were not consulted about,” the president of the National Agrarian Confederation (CNA), Antolín Huáscar, told IPS.

By his count, of 5,680 rural villages in the country’s highland region and more than 1,300 in the Amazon jungle, over 5,000 are represented by the organisations taking part in the protests and other actions.

According to the 1993 census, indigenous people made up one-third of the Peruvian population. But more recent estimates put the proportion at 45 percent, with most of the rest of the population of 28 million being of mixed-race heritage.

The constitutionality challenge is based on the argument that the executive branch approved the decree by making use of special legislative powers granted it by Congress for another purpose – signing a free trade agreement with the United States – and that it was unable to get the legislature to pass the new law several weeks earlier.

Gloria Ramos, the chair of the legislative committee on Andean, Amazon and Afro-Peruvian Peoples, the Environment and Ecology, said the committee had rejected the initiative on the grounds that it undermined the rights of local communities.

“The executive branch has sidestepped the legislature to do what it wants, which is why we will demand that the law be overturned,” said Ramos, who belongs to the centre-left Union for Peru (UPP) party.

Another opposition party, the Peruvian Nationalist Party (PNP), headed by Congresswoman Yaneth Cajahuanca, introduced a draft law last week aimed at repealing the legislative decree.

At the same time, the signatures of 30 opposition lawmakers are being collected to present another constitutionality challenge against the controversial measure.

The vice president of the Interethnic Association for the Development of the Peruvian Rainforest (AIDESEP), Robert Guimaraes, told IPS that the legislative decree encourages the dismantling of the indigenous collective property system, without taking into consideration that “we are a multicultural country.”

“We indigenous people have a different concept of territory. For us, it is a collective, not individual, asset, and is also related to cultural customs and values,” explained Guimaraes, who will travel to Washington in early June to request that the Inter-American Commission on Human Rights issue precautionary measures in the case.

AIDESEP, which is preparing the legal groundwork for the indigenous groups’ constitutionality challenge, says the legislative decree violates article six of International Labour Organisation (ILO) Convention 169, which requires states to consult indigenous communities with regard to any legislative or administrative measures that could affect them.

The decree also contravenes several articles of the constitution, which establish that indigenous communities have autonomous forms of organisation and guarantee communal property, argues AIDESEP.

“Extinguishing communal property wipes out indigenous communities or peoples,” because the indigenous identity is inextricably intertwined with their ancestral territory, states AIDESEP’s legal brief, drawn up by lawyer Bady Casafranca.

García has stated that the decree is aimed at uprooting “a kind of selective racism” that keeps highland and jungle communities from enjoying the same opportunities as indigenous people on the coast, who have been able to approve private investment on their land by a simple majority vote for several years.

The president announced the decree in an article titled “Recipe to Put an End to the Dogs in the Manger”, published by the El Comercio newspaper last year, in which he argued that villagers in the highland and jungle regions must “stop being second-class citizens without initiative.”

The article, seen as a clear explanation of the government’s arguments for fomenting private investment, refers to those opposed to such measures as “dogs in the manger,” a reference to the saying about people who begrudge others what they are unable to enjoy themselves.

But in Huáscar’s view, encouraging the “individualistic use” of land has led to a loss of indigenous territory.

The entry of private investment has come hand in hand with the formal land titling and break-up of communal property, and many indigenous peasants in the coastal regions have been forced to pawn their land titles to obtain loans, given the lack of state support for improving the productivity of their farms, he said.

“If that also occurs in the Andes and the Amazon, the only thing that will happen is that indigenous people will lose their land and migrate to the cities, where they suffer discrimination, while the country’s food security will be endangered. What guarantees are there for the communities to be able to enter the market or for them to benefit from this incentive for private investment?” he asked.

Some warn that the decree opens the door to manipulation of communal assemblies.

“The common practice of many companies has been to foment the creation of communal organisations parallel to the official ones, and to co-opt some of the local leaders, which has enabled them, in many cases, to destroy the social fabric and impose their own decisions,” said lawyer Javier Jahncke with the non-governmental Ecumenical Foundation for Development and Peace (FEDEPAZ).

But Rodolfo Beltrán, the head of the National Programme for the Management of River Basins and Soil Conservation, argued that the decree is just one option for improving agricultural production on the more than 300,000 hectares of community land registered by that government agency.

“The decree is an alternative, not a mandate to sell or lease land,” he said.

 
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