Two proposed laws before Congress are aimed at strengthening the defence of indigenous rights. Proposed Law 4044 would amend existing Law 28736 in order to provide greater protection for indigenous peoples in voluntary isolation and initial contact. A separate proposal relates to the self-identification and registration of Andean, Amazonian and Afro-Peruvian peoples. If passed, both laws would significantly enhance the ability of indigenous and first nation peoples in Peru to defend their rights.
In 2006, Congress passed Law 28736 protecting the rights of Amazonian indigenous peoples in a situation of voluntary isolation and initial contact, especially the right to life and health, while safeguarding their existence and integrity.
As the Peruvian economy reopens, the Ministry for Production has included logging and extractives amongst the first activities for which operations are authorised to resume, precisely at the moment when the Covid-19 pandemic is ravaging Amazonian indigenous communities. Covid-19 has raised concerns about the possibility of ethnocide amongst ‘uncontacted peoples’ and has caused doubts about their legal protection.
The 2006 law included a clause which states that where a useful natural resource whose exploitation is declared a ‘public necessity’ is located in an area reserved for people in isolation, concessions for its extraction may be awarded. This escape clause has allowed the state to award concessions, especially for timber extraction, without regard for the possible impacts on uncontacted peoples. An uncontrolled reactivation of economic activities, especially logging, could put their very existence in danger.
Unsurprisingly, business groups are staking out their opposition to the proposed laws. The Hydrocarbons Association (SPH) argues that this would obliterate the rights they have gained as investors in at least six gas blocks. According to SPH president, Felipe Cantuarias, quoted in El Comercio, “if this bill is approved it will have a massive effect because it would impact on 50% of electricity generating [from gas] and would freeze the massification of this hydrocarbon, as well as oil production [in the northern jungle]”.
At much the same time, on 22 May, the congressional committee dealing indigenous peoples and the environment received a proposal from the Indigenous Peoples Working Group of the National Human Rights Coordinator to amend Law 28736 to establish the intangible nature of existing and proposed reserves for indigenous peoples in voluntary isolation by prohibiting all future extractive activities. On 26 May, the committee unanimously approved the proposal which was then sent for debate and approval in a plenary session of the Congress. It is awaiting placement on the agenda for debate.
Since the 1970s, when laws were passed by the Velasco government for the legal recognition of peasant communities in the Andes and native communities in the Amazon, indigenous communities and peoples seeking official state recognition have been obliged to do so community by community, usually as a necessary step to be able to obtain legal title for their lands. For over 40 years individual communities have struggled to obtain recognition in the face of indifferent and sometimes hostile government functionaries applying complex procedures.
Recent years have seen growing pressure, especially in the Amazon, for the indigenous to construct their identities as peoples, rather than communities, in accordance with international laws and treaties, and on this basis seek self-determination. As the constitutional lawyer Juan Carlos Ruiz has said, “Communities organised in an isolated way are very functional to the government and extractive companies, because this weakens the position of the indigenous peoples, allowing the state in practice to impose its will rather than negotiate reasonable and just agreements.”
In 2017, when Achuar communities in Loreto sought legal recognition as a people as part of a process for obtaining land titles, the regional government issued an ordinance (OR 014-2017-GRL-CR) recognising the Achuar as a people. This was then challenged by the national government and in 2018 the Constitutional Tribunal declared the ordinance unconstitutional (Sentence No. 0004-2018-PI). It did so on the grounds that, under Peruvian law, indigenous peoples’ organisations could only be legally recognised at the community level. Meanwhile, for example, the Wampi indigenous people have constructed the Wampi Autonomous Territorial Government which has received de facto recognition from the San Martín regional government. It exercises de facto internal governance over the affiliated communities but has no legal status.
To remedy this situation and create the legal conditions for the creation and recognition of more broadly representative indigenous organisations, a group of indigenous organisations representing Andean, Amazonian and Afro-Peruvian communities presented a proposal on 29 May to the congressional committee dealing with indigenous and environmental matters. Formulated with support from the International Institute for Law and Society (IIDS), it proposed the creation of a separate Indigenous Peoples Register in the Public Titles Office (SUNARP) so that indigenous organisations can obtain legal recognition in the forms that they themselves choose.
This proposal was well received by the committee which named a working group to develop the proposal into a draft law. However, the proposal was quickly questioned by some Amazonian indigenous organizations on the grounds that, as proposed, a single register for all kinds of indigenous organizations would make it easy for the government or extractive companies to promote multiple organisations claiming to represent the same ethnic group.
This debate seems to have been resolved by an agreement reached between the original proponents and their critics under which the Indigenous Peoples Register would compose four ‘books’ or sub-registers. They would include one for indigenous peoples and another for Afro-Peruvian peoples in which a single organisation would be recognized for each ethnic group. Added to these would be two pre-existing sub-registers, one each for peasant communities and native communities in which various ‘sub-groups’ could be recognized. So, for example, the Ashaninka would have a single representative of the whole ethnic group in one book, whilst other more localised organisations would be recognised in another.
These proposals and debates reflect the diverse situations in which indigenous peoples in Peru find themselves. In the Amazon there is a growing desire for indigenous peoples to be represented and recognised for their ethnicity and to use this to attain some degree of autonomy and self-governance. However, this would be easier to achieve and implement where existing communities that share the same ethnicity comprise a single territory: the case of the Wampis and Matses, for example. Other ethnic groups, as a result of persecution by rubber traders (caucheros) or Shining Path, are scattered and do not share a single common territory, as is the case with the Achuar and Ashaninka. In such instances, it could be more problematic to construct a single organisation to represent and govern them.
At the moment, this is an unfinished story but one which will affect indigenous politics and the economic and politics of the Amazon region in the coming decades.
In the meantime, on 30 May, the government approved Supreme Decree No. 004-2020-MC which sets out the guidelines for providing culturally sensitive services to indigenous people and Supreme Decree No. 005-2020-MC which requires that ethnic identity be included in all statistics related to the Covid-19 crisis. In addition, as we have noted, regional governments have begun to establish indigenous Covid Commands to coordinate government support for indigenous communities.