Writes: Lelis Rivera
Since the enactment of the first Law of Native Communities and Agricultural Development of the Selva and Ceja de Selva Regions (DL No. 20653) until today, 43 years of legislation have passed that, among other things, recognizes the legal existence and the property right over the territories of the native communities of the Peruvian Amazon.
On May 9, 1978, a new Law of Native Communities and Agrarian Development of the Selva and Ceja de Selva DL Regions was put into effect. . 22175; and, on January 25, 1979, its Regulations. The new Law repealed the previous one, due to the enactment of the first Forest and Wildlife Law DL. No. 21147 in May 1975; a clear impossibility of correctly applying the DL was evidenced. . 20653, in view of the fact that Article 1 of the Forestry and Wildlife Law determined that "Forest resources and wildlife are in the public domain and there are no acquired rights over them." This prevented the recognition of property rights and title to all the demarcated forested communal territories. Thus, the new DL 22175, incorporates in its Article 11 that "The part of the territory of the native communities that corresponds to lands with forestry aptitude will be transferred to them in use and its use will be governed by the Law on the matter".
Between 1974 and 1979, when DS No. 003-79-AA, DL Regulation, was promulgated. . 22175, the State, through the Regional Agrarian Directorates (DRA's) and the General Directorate of Agrarian Reform and Rural Settlement (DGRA / AR), had titled more than 600 Native communities, based on a work planned and coordinated with the Regional Agrarian Directorates, the National System of Support for Social Mobilization (SINAMOS) and with funds exclusively from the State.
Between 1980 and 2017, that is, in 37 years, around 700 additional communities have been titled, such work having been commissioned to different state entities such as the DGRA / AR, the DRA's, Special Land Titling Project - PETT, COFOPRI and lately (2010) to the Regional Governments (GORE). However, as of 1980 the State dramatically diminishes the interest in planning and contributing budgetary resources to this activity, which is why international cooperation initiatives appear to contribute resources and resume it as: Swiss Technical Cooperation (Prov. Of Oxapampa), CEDIA (Cusco Madre de Dios, Loreto and Ucayali) and AIDESEP (Loreto and Ucayali), which have contributed more than 80% of budgetary resources to achieve this achievement.
In recent years, other initiatives of NGOs and International Technical Cooperation have been added, such as IBC, WWF, DCI, GIZ and recently the State project PTRT3 based on an IDB loan, among others.
The designation of MINAGRI as the governing body in matters of legal physical sanitation in January 2013, brings with it a series of obstacles to the processes of legal physical sanitation of communities carried out since 2010 in some Regions such as Loreto, whose powers were transferred in the framework of the Organic Law of Regionalization Law 27867; supplemented by other lower-ranking standards.
There are national obstacles that were imposed on the GORE and made their functions in this field relative. Impose the GORE to carry out Land Classification Studies by Greater Use Capacity, based on the DS. Nº 017-2009-AG, Regulation of Land Classification by Capacity for Greater Use; and, the DS. . 013-2010-AG. Regulations for the Execution of Soil Surveys. Both standards are part of the function of the General Directorate of Agrarian Environmental Affairs (DGAAA), so the Native Communities should now assume the costs of preparing the Soil Classification studies by Greater Use Capacity, since neither the GORE and unless the governing body has the resources to do so. This entails hiring a Specialist -one of the few that are certified by the DGAAA-, assuming the cost of the pits, the collection and transfer of soil samples to the Agrarian University of la Molina, the review of the Study by the DGAAA and its approval by Ministerial Resolution.
Obviously it was inoperative to carry out this procedure, since neither of the two aforementioned SDs requires that the titling of native communities comply with these norms. On the contrary, the Political Constitution of Peru and ILO Convention 169 oblige the State to recognize the right of ownership of the territories occupied by the community and / or indigenous peoples, since they are their property and the State should only deliver the legal documents that prove them as owners to third parties.
The DGAAA, after receiving countless criticisms for trying to enforce compliance with these regulations, has finally understood that for more than 5 years it has been hindering the titling process of native communities and tried to lower the fence of requirements to the communities to through Ministerial Resolution No. 355-2015-MINAGRI; whose implementation was worse, since it tried to correct the DS by reducing their demands. In addition, he tried to go further, declaring that the GORE are obliged to comply with such procedures, knowing that the DS do not at any time oblige them or relate them to the community titling procedure.
After almost two years in which the process was blocked, on May 24, 2017, MINAGRI issued RM 194-2017-MINAGRI, by which it repeals RM 355-2015- MINAGRI. With this, a procedure closer to reality is generated, which will be in the hands of the GORE; that it is nothing other than returning to the regions the competition that they have always had and that only Loreto and Ucayali maintained. We are sure that in the following months many communities will finally be able to receive their property titles after many years of waiting. For CEDIA this is an important result of the permanent dialogue at different levels in which a series of institutions have been involved, especially in the framework of the PTRT3 Consultative Committee.
However, this Resolution still unnecessarily mixes community sanitation procedures with property adjudication procedures that have another legal aspect that we hope will be corrected; but in substance, it is clear that the procedure has been simplified since in the case of titling native communities, only an Agrological evaluation for Greater Land Use Capacity is required, which will be prepared by a professional with experience in the GORE.
Other obstacles that prevent the titling of communities remain; that must be resolved by the Forest and Wildlife Service (SERFOR), since without any legal or technical support, they intend that for the resizing of the Permanent Production Forests (BPP) a study of land classification by capacity of major use approved by the DGAAA, even though no serious field study was done to create these BPPs and everything was done in the Cabinet. This obstacle is that, in Loreto alone, it has more than 40 titled communities without being able to be registered in the public registers, now, thanks to RM 194, it has been left without support. We are waiting that in the coming days SERFOR, in the face of reality, generates clear guidelines in strict coordination with SUNARP, so that the BPP, superimposed on the Native Communities and others, are resized with a legal, fast and regional in nature. This is in order to completely unblock this procedure and take advantage of this historic opportunity that has arisen to close the gap in community sanitation in the Peruvian Amazon.