On 27 January, in a public hearing before the Constitutional Tribunal in Arequipa, human rights and indigenous organisations took issue with Law 30230, arguing that it was unconstitutional. The law, which was approved in July 2014, was designed to promote investment. Juan Carlos Ruiz from the Instituto de Defensa Legal (IDL) argued that the law violated the rights of indigenous people to exercise control over their ancestral lands.

Ruiz pointed to the number of “special procedures included in the law that facilitate the legal control of territories (saneamiento físico legal) for investment projects, and other dispositions that increase the efficiency in the way state land (predios) are administered to speed the execution of infrastructure projects”. Such procedures do not distinguish between land that is state-owned and land that belongs to indigenous communities as part of their ancestral heritage. For more analysis see: ¿Por qué la ley 30230 promueve el despojo de territorio de comunidades campesinas y nativas?

The Peruvian state still fails to recognise that indigenous communities are the rightful owners of their territories, even when they lack legal title. This has been repeatedly and amply recognised in a number of international human rights treaties, conventions and instruments. For instance, ILO Convention 169 (Article 14) recognises that indigenous peoples have rights over their ancestral territories and it requires states to take the necessary steps to guarantee protection of these.

In Peru, according to the Instituto del Bien Común (IBC), of the approximately 10,000 native and peasant communities that inhabit the country, 4,500 do not have a land title and 7,500 are not geographically referenced. This makes the land they live on highly vulnerable to being appropriated by the state and then granted to private entities for investment purposes.

At the outset, Law 30230 included a clause that allowed the state to have legal control over all territories that lack a title. After much pressure from civil society, the law was amended and a reference added that allowed native and peasant communities to be excluded from the saneamiento físico legal.

Human rights and indigenous organisations continue to stress, however, that this change is just cosmetic as, in practice, all land for which no legal title has been granted runs the risk of being taken and given to private interests for investment. They argue that this has been reinforced by the recent package of executive decrees, some of which appear to impact negatively on indigenous rights.

According to CAAAP (the Centro Amazónico de Antropología y Aplicación Práctica), Legislative Decree 1333 prioritises the facilitation of infrastructure projects that are described as being of national interest and/or of major scale (gran envergadura). CAAAP cites the creation of a “Special Project for Access to Land for Investment Priority Projects” within the remit of the Agency for the Promotion of Private Investment (Agencia de Promoción de la Inversión Privada) otherwise known as Proinversión.

Proinversión is given three years to execute the project and to take the necessary steps to obtain legal control of those territories (through saneamiento físico legal) identified for private investment. This includes identifying and recognising “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 assemblies”. CAAAP argues that these provisions violate international principles that prohibit the reallocation or displacement of indigenous communities and recognise the right of communities alone to convene assemblies.

Ruiz concluded by calling on the Constitutional Tribunal to ensure that the Peruvian state abides by the rule established by the Inter-American Court of Human Rights (IACHR) that requires states to refrain from granting any type of right or concession over territories that have no community land title. The rule holds that if a state wishes to facilitate an investment project on such lands, it must ensure that communal land titles are first offered to indigenous groups. He said that “[the Tribunal] has an historical opportunity to give a sentence that protects the ancestral territories of indigenous people. With this it also has the opportunity to prevent many social conflicts”.