National Context & the Avalanche of Legislative Decrees

The Peruvian government’s approval of over a hundred legislative decrees in recent months has taken place under the context of the special authority that Congress granted Alan García in order to facilitate the implementation of the Free Trade Agreement (FTA) with the US – that authority was for a period of 180 days expiring on June 30th. This package contains at least forty decrees concerning issues related to peasant and native communities and natural resources.

According to the analysis of specialist bodies such as the Peruvian human rights ombudsman, several of these decrees exceed this special authority. One example of this is decree 1015 which introduced substantial changes to the decision-making process for community property such that the sale or leasing of communal lands no longer requires approval by two-thirds of qualified community members, but just a simple majority of those members of the community attending an assembly meeting. One month later this was modified by decree 1073. This stipulates that these community members must have been ‘posesionarios’ (i.e. have occupied and used land) during the preceding year.

To understand the significance of this legislation, it should be read in conjunction with other decrees that have been issued recently. One of the most important of these is Decree 1064 which repeals the ‘Land Law’ (law 26505). This repeal has the effect that ‘prior agreement’ of the landowner regarding how property will be used (for instance, for mining) is no longer necessary. Prior to Decree 1064, the legislation established that in the absence of prior agreement, the State could oblige land use modification, as long as it could be shown that prior forms of land use could also continue unencumbered. Legislative decree 1064, however, establishes that “lands for agricultural use are subject to the following land use modifications (…) installations for mining exploration and exploitation…”. As companies no longer need prior agreement from communities for such modifications, they could develop activities by simply gaining approval of the Ministry for Energy and Mines. Peasant communities, or other owners, would therefore no longer decide the fate of their lands but instead they would have to await the decision of the State based on the companies’ requests.

Imposition, Debate and Proposals
Beyond these specific problems related to the content of the new decrees, there are more basic issues at stake. The Government states that it is using the decrees to promote investment for development in rural communities, but it has made no comment on issues that are still to be resolved in those very same communities. One of the most urgent of these is the state of land ownership.

Through this set of reforms, the State is forging ahead in promoting a form of privatisation driven by minority economic interests. Meanwhile the Executive is exceeding the limits of its special authority and approving norms which change decision-making processes regarding natural resources, without consulting the communities who own the land where these resources are found. Though the García government may be operating through legal channels, it is doing so in a way that gives its actions little legitimacy.

In this sense, the issues at stake relate not only to the specific implications of the decrees issued by the Government, but also to the manner in which the Government is trying to set conditions and impose its vision regarding the use of national resources; resources which the Nation has entrusted to the State to manage on its behalf in the best possible way for the benefit of all. Ultimately its actions are contradictory: it promotes investment but not tax reform; it argues that regional governments already have enough income from the mining canon (1) but does nothing to strengthen their management capacities; and it ends up accusing the regional governments of inefficiency. The final effect of all this is to generate yet more tension between the regions and Lima.

This situation demands an articulated response. In the case of the peasant communities, although it is important to criticize the norms, this on its own isn’t enough. Problems within the communities themselves also have to be acknowledged and addressed: problems such as out-of-date electoral registers, property rights that have not been registered and internal resource conflicts. What is really needed is a proposal which shows how communities can contribute to their own development as well as to rural development in general. Just as important is that this proposal demonstrates that, under the right conditions, communities are neither an obstacle to investment nor enemies of economic development.

Proposals similar to these have already been made, but it has proven difficult to foster public debate on issues which would imply substantial changes to the actual model. These proposals show us that the challenge is to rethink the terms of the relationship between communities, business and the State in the process of development.

Abridged version of an article written for the PSG by María Luisa Burneo
Peruvian Centre for Social Studies (www.cepes.org.pe) and member of the Territory, Conflicts and Development in the Andes research team, Manchester University.

(1) Mining canon – a transfer from the State to local and regional governments of a percentage of tax revenue generated by the mining sector.