PAPER NO. 99 B I O D I V E R S I T Y S E R I E S Models for Recognizing Indigenous Land Rights in Latin America Roque Roldán Ortega October 2004 THE WORLD BANK ENVIRONMENT DEPARTMENT Models for Recognizing Indigenous Land Rights in Latin America Roque Roldán Ortega October 2004 Papers in this series are not formal publications of the World Bank. They are circulated to encourage thought and discussion. The use and citation of this paper should take this into account. The views expressed are those of the authors and should not be attributed to the World Bank. Copies are available from the Environment Department of the World Bank by calling 202-473-3641. The International Bank for Reconstruction and Development/THE WORLD BANK 1818 H Street, N.W. Washington, D.C. 20433, U.S.A. Manufactured in the United States of America First printing October 2004 Contents FOREWORD v PREFACE ix ACKNOWLEDGMENTS xv Chapter 1 AShort History of Indigenous Legal Treatment in Latin America 1 Chapter 2 Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America 5 Countries with a Superior Legal Framework 5 Bolivia 5 Brazil 6 Colombia 6 Costa Rica 7 Panama 8 Paraguay 8 Peru 9 Countries with a Legal Framework in Progress 9 Ecuador 9 Guatemala 10 Honduras 11 Mexico 11 Nicaragua 12 Venezuela 12 Countries with a Deficient Legal Framework 13 El Salvador 13 Guyana 13 Suriname 14 Chapter 3 Common Problems in the Legal Framework for Recognition of Indigenous Lands 15 BiodiversitySeries iii Models for Recognizing Indigenous Land Rights in Latin America Chapter 4 Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management 17 Land Tenure Regime 17 Territorial Recognition 20 Natural Resources Rights 20 Tenure Security 22 Autonomy 23 Legal Recourse 24 Conclusions 25 NOTES 27 BIBLIOGRAPHY 29 BOXES 1 Status of ILO 169 Ratification 2 2 Typology of Indigenous Legal Regimes 3 3 Key Characteristics of Indigenous Land Tenure, by Country 18 iv Environment Department Papers Foreword The history of the Americas did not begin with around economic and social issues, and to the discovery by Christopher Columbus. The create the capacity for the integration of the people of the Americas had already lived material and the non-material dimensions of thousand of years of impressive development, peoples' lives. including those of science and technology; the forgotten history of that continent. Some of the above became important tradi- tions, which we find even today in many parts, In many ways, this paper represents an including the territories inside the developed important dimension in filling history's gaps countries of North America. through the lens of land rights. The continent was populated by many nations that Central to those indigenous traditions was functioned in harmony with nature, had a land and, therefore, land tenure systems and variety of cultures and languages, and rights were essential to the people's welfare in developed many different socio-economic many respects--in particular, land as a major systems (nationally and locally). These nations economic asset, an instrument of inheritance, were sovereign and recognized from Alaska to and a symbol of social status. But land was also Patagonia. sacred and essential to people's spiritual development. In all those societies, it is very Many nations grouped actively around an rare to find a vacuum in both the legal, or important metropolis (e.g., Tikal, Machu customary arrangements, as regards the Picchu), others were mainly agricultural assignment of land titles and land rights-- societies and deeply attached to and, whether these are expressed formally or dependent on, the land. However, in all of informally. them, we know they had very advanced and well established institutional arrangements and Once the Conquistadores realized that there organizations (formal and informal), created was not much gold to take away from the and nurtured with the view to respond to the Americas, they clearly saw economic and needs and challenges of the time. With a social power, and substantive material gains, variety of forms of governance, these societies from the land. This created a major pressure to did assign rights and responsibilities to the assign rights in forms and manners that would different actors and groups in order to benefit those Conquistadores. Whole valleys maintain an acceptable level of social cohesion, and huge chunks of nations were assigned to to establish important political consensus individuals, without respect for existing BiodiversitySeries v Models for Recognizing Indigenous Land Rights in Latin America customary laws, rules and regulations. They · First, recognize the existence of these created and, at the same time, superimposed complex land rights and land titling their own colonial system of legislation on the systems across Latin America, often top of what was already a sophisticated and ignored in the public debate, unless policy effective system of land tenure. makers confront an immediate problem. · Second, study the content at the country Thus, these societies experienced an imposition level, so that international experiences and of one system of governance over another. comparisons may spark a move towards Physical force and non-discriminating forms of policy coherence and legislation that will enforcement were the foundations of the ultimately benefit indigenous peoples and Conquistadores' new forms of governance. those poor people who live from the land. · Third, demonstrate that land is not only a In today's reality, we know that the peoples physical asset with some economic and from these nations have not vanished, nor financial value, but an intrinsic dimension have their ways of empowerment, assignment and part of peoples lives and belief of rights, or other forms of institutional arrangements vanished either. Therefore, we systems. The end is not necessarily a witness in many countries a great deal of material product or a level of economic complexity in relation to the access, productivity. management, usufruct and control of land assets. The phenomena addressed in this paper are not unique to the Americas. In my own As the political systems of some countries are experience of several years working in the now becoming more democratic or open to confines of the Sahelian countries' agricultural listening and embracing the views of sector (e.g., Senegal, Mali, Niger, Gambia), the minorities (e.g., power, ethnic), these issues of juxtaposition of customary arrangements, land rights have clearly come up to the surface colonial arrangements, and post-colonial of the political life. Issues of sovereignty, arrangements was really evident. The lack of customary law and, simply, of traditional coherence in the land tenure and land titling norms--from the national to the household policies in the mid-eighties constituted one of levels--are being put on the table of what is the main sources of poverty--particularly for clearly a complex social dialogue. In some women--and of unsustainable agricultural instances, these dialogues have even caused practices. Many agricultural programs and the demotion of several presidents in Latin strategies failed because of issues of titling and America. tenure. Development institutions tried many forms of interventions: agrarian reforms, The paper in front of you is an excellent source resettlement programs, privatization of land, of basic information, sharing an easy and and the like. The performance of many of these practical understanding about land tenure/ interventions was mixed. titling, in the same sense discussed above. In addition, the paper represents a genuine attempt to: Titles over the land represent also a form of productive asset that determines the cash vi Environment Department Papers Foreword income of the owner and her/his ability to If the main aim of development institutions is have access to credit. In most societies, having to alleviate poverty, it is clear that issues of a title over a good piece of the land is a major land tenure and land titling in the context of source of credit collateral. Thus, if you do not indigenous peoples cannot be overlooked. have land, then your access to credit is very Thus, any future debate on land titling limited. It was, in fact, out of these titles over demands focus on the fact that those titles are the land that many landlords (absentee ones) a significant instrument to take people out of became bankers and industrialists. For the poverty and a major source of economic poor, even tenure and titling of a small plot in growth, particularly in agrarian economies. rural, or urban, areas represents a major source of welfare for her/his and future generations. However, this is not all. There is also a human The market prices value mainly (not always) rights dimension to all of the above. And it is what is formally owned. essential to understand this human rights dimension of land rights, not just as a legal Not less important is the land titles' role in the obligation, but as a key element of economic development of individual and social identity. and social development. Land laws in both Land is a source of social power and social self- developed and developing countries have worth. In many societies, part of the land has affected the poor and the powerless the most, sacred meaning and great spiritual value. particularly women. These rights over the land Thus, whenever governments or the private affect other human rights; e.g., The Right To sector move people away, or alienate them, Food (security of food supplies), The Right To from those sacred sites, this process is almost Housing (capacity to own a house), The Right To always accompanied by social disruption, Health (the use of medicinal plants) and The instability and conflict. Right To Development, to name a few. While for landlords the land is just a produc- This paper should be read by development tive asset, for indigenous peoples it is much practitioners and policy makers. more than that. Alfredo Sfeir-Younis Senior Adviser to the Managing Director's Office The World Bank BiodiversitySeries vii Preface Over the past several years, the international Commission on Prevention of Discrimination community has become increasingly aware of and Protection of Minorities established a the vital importance of the legal recognition of special Working Group on Indigenous indigenous land rights to the cultural survival, Populations, the purposes of which were to economic development and self-determination review current national legislation in relation of indigenous peoples and their communities. to the human rights and fundamental As far back as 1981, for example, the United freedoms of indigenous peoples and Nations Subcommittee on Racism, Racial recommend new international standards for Discrimination, Apartheid and Decolonisation the recognition and protection of indigenous sponsored a special International NGO peoples rights. From the beginning, the issue Conference on Indigenous Peoples and the of indigenous land rights was on the agenda of Land in Geneva, Switzerland which was the UN Working Group, and during the 1985 attended by over 300 indigenous leaders and session of the Working Group, a group of NGO representatives from all parts of the indigenous leaders from the Amazon region of world. The purpose of the meeting was to South America focused particular attention on bring to the attention of the international the collective rights of indigenous peoples to community the disparate legal, political and their lands, territories and natural resources. economic conditions under which indigenous Jose Uranavi, the President of the newly peoples lived and their struggles to survive as formed Central Organization of Indigenous culturally distinct peoples and communities. Peoples and Communities of Eastern Bolivia "The root cause of the crisis," the statement (CIDOB) and representing the Coordinating which resulted from the International NGO Council of Indigenous Organizations of the conference declared, "is the denial of the right of Amazon Basin (COICA), related the following [indigenous peoples] to their land. Their land and to the members of the UN Working Group at resources are plundered by vested interests and the 1985 meeting: particularly by transnational corporations seeking maximum profits. The constant grabbing of more Our defense of the land and natural resources of their land and the denial of self-determination is is for the cultural and human survival of our destroying their traditional value systems and the children, and is the foundation of a moral secu- very fabric of their societies." (World Federation rity for peoples who have different languages of Democratic Youth, 1981, p.10). and customs... We indigenous peoples think and plan in terms of the territory, not only the in- A year following this conference, in 1982, the dividual plot; in this way, we assure the access UN Human Rights Commission's Sub- BiodiversitySeries ix Models for Recognizing Indigenous Land Rights in Latin America of the community to the diverse resources of resource use. And this recognition must also the forest (wood, soil appropriate for agricul- give local communities a decisive voice in the ture and cattle, and wild fauna)... For us, the decisions about resource use in their area. first thing is to secure our land which --World Commission on Environment and Development, 1987, pp. 115­116 belongs to us by right, because we are the true owners of the land and natural resources. We Finally, in 1989, the International Labor indigenous peoples know that without land Organization (ILO), which at the time was the there can be no education, there can be no health and there can be no life. --Uranavi, 1985, p. 20 only UN agency with a special convention in relation to indigenous peoples, revised its Continuing along a similar path, in the second Convention 107 of 1957 and created a new half of the decade of the 1980s, the Convention (ILO Convention 169) which international environmental community began countered the "integrationist" or to acknowledge the increasing significance of "assimilationist" philosophy of the previous indigenous peoples' traditional knowledge and convention and called for respect for both the land use practices to the new notion of cultural integrity of indigenous peoples and "sustainable development." The World their communities and for their co- Commission on Environment and participation in national society and Development, for example, conducted development decision-making. Land rights, consultations with indigenous leaders from which assumed an important role in both throughout the world and in its well-known conventions, are especially highlighted in the 1987 report, Our Common Future, highlighted latter convention. the great loss to humanity posed by the disappearance of indigenous peoples and their ILO Convention 169 states that the term traditional knowledge and experience. "The "indigenous lands" should be conceived as the starting point for a just and humane policy for total environment of the areas that indigenous such groups," the report of the World peoples occupy and use. It also defines the Commission wrote in a section titled conditions for compensating indigenous "Empowering Vulnerable Groups": peoples for the exploitation of subsoil wealth contained on their lands, and calls for the . . . is the recognition and protection of their participation of indigenous peoples in the traditional rights to land and the other resourc- utilization, administration and conservation of es that sustain their way of life--rights they natural resources contained on such lands. may define in terms that do not fit into stan- (See: ILO Convention 169 on Indigenous and dard legal systems. These groups' own insti- Tribal Peoples in Independent Countries, 1989.) tutions to regulate rights and obligations are crucial for maintaining the harmony with All of the above provides an international nature and the environmental awareness char- acteristic of the traditional way of life. Hence perspective for understanding the significance the recognition of traditional rights must go of the current paper by Colombian lawyer and hand in hand with measures to protect the lo- indigenous rights specialist Roque Roldán cal institutions that enforce responsibility in Ortega on the current situation of indigenous x Environment Department Papers Preface land rights in the constitutions, legislative international agencies as the ILO, the regimes and administrative institutions of Organization of American States, the World Latin American countries. Roque Roldán Bank, and numerous bilateral agencies in Ortega is eminently qualified to write on this reviewing legislative reforms relating to the subject given his several decades of experience recognition of indigenous lands and as the head of the Office for Indigenous Affairs recommending changes in administrative of the Colombian Agrarian Reform and procedures for the more efficient and just Colonization Institute (INCORA), his position regularization and titling of such lands. He is as Director of the General Office of Indigenous also currently involved in a very important Affairs of the Colombian Ministry of the project sponsored by the COICA in preparing Interior, and his founding and leadership of the general guidelines for indigenous land non-governmental Center for Indigenous regularization and natural resources control Peoples Cooperation (CECOIN) in Bogota in throughout the lowland regions of South 1985. America. Roque Roldán Ortega has played an From the perspective of the World Bank, historically important role in the recognition Roque Roldán Ortega's paper is also important and titling of numerous indigenous resguardos because over the past decade, and especially in his native Colombia. He has also provided since the introduction of the World Bank's active and critical support to numerous Operational Directive on Indigenous Peoples in indigenous and Afro-descendant organizations 1991, the World Bank has been involved in in their successful struggle to reform the financing several land administration Colombian Constitution in 1991 and to programs in Latin American countries, many produce post-Constitutional legislation of which contain indigenous land protecting the land, territorial and natural regularization components. Both the original resource rights of both indigenous peoples and World Bank Operational Manual Statement on Afro-Colombian populations. Background to "Tribal Peoples in Bank-financed Projects" this experience is contained in his book, (OMS 2.34) and its current Operational Indigenous Peoples of Colombia and the Law -- Directive on "Indigenous Peoples" (OD 4.20) A Critical Approach to the Study of the Past and contain special directives for protecting the Present, published in English by the Gaia land rights of indigenous peoples. The latter Foundation, COAMA and the ILO in 2000. document, in fact, states under the section on the requirement for Borrowers to prepare Roque Roldán Ortega also has had extensive Indigenous Peoples Development Plans that experience in providing technical advice in the "when local legislation needs strengthening, area of indigenous legislation and the Bank should offer to advise and assist the administrative procedures relating to borrower in establishing legal recognition of indigenous land regularization to several other the customary or traditional land tenure Latin American governments. He has also systems of indigenous peoples." It also notes worked as a consultant with such that "where the traditional lands of indigenous BiodiversitySeries xi Models for Recognizing Indigenous Land Rights in Latin America peoples have been brought by law into the the natural resources contained on such lands domain of the state and where it is (see Wali and Davis, 1992). inappropriate to convert traditional rights into those of legal ownership, alternative Since the publication of this report, there have arrangements should be implemented to grant been numerous other projects financed by the long-term, renewable rights of custodianship World Bank which contain indigenous peoples' and use to indigenous peoples." Finally, it land regularization programs or are stand- states in the same paragraph that "these steps alone land administration projects targeted at should be taken before the initiation of other indigenous peoples. To date, there have been planning steps that may be contingent on some evaluations of individual projects, recognized land titles." (See OD 4.20, including one very important review done by paragraph 15 (c), 1991.) Enrique Sánchez Gutiérrez and Roque Roldán Ortega of a Bank-financed land regularization In the year following the introduction of OD program for indigenous and Afro-descendant 4.20, Alaka Wali (an anthropologist who had communities on the Pacific Coast of Colombia done fieldwork among the Kuna Indians of (see Sánchez Gutiérrez and Roldán Ortega, Panama) and I published a desk review of 13 2002). However, there has still not been a World Bank-financed projects under systematic comparative study of the lessons supervision or preparation which contained learned from the entire portfolio of indigenous special land regularization programs for land regularization programs financed by the indigenous populations in lowland South World Bank since the introduction of OD 4.20 America. The review looked at the in 1991. achievements and operational problems of these programs, especially in countering the In all of the above senses, the present report by potentially negative effects of road Roque Roldán Ortega poses a special challenge construction, land settlement and resource in terms of the need both to better understand extraction activities on the lands, natural the current legislative frameworks of Latin resources and cultures of forest-dwelling American countries in relation to indigenous indigenous groups in several South American peoples land rights, as well as to provide countries. One of the major findings of this support for the sorts of actions which review was that although these land international donors have or could be taking to regularization programs were instrumental in assist these countries in actually implementing physically demarcating and in some cases such legislation. In taking up this challenge, collectively titling large areas of indigenous the World Bank would not only be responsive lands, they also contained many outstanding to the international focus upon indigenous problems especially in terms of the nature of peoples land rights which was first highlighted legal frameworks, procedural problems in by international agencies in the decade of the regularizing such lands following 1980s and is contained in its own operational demarcation, and follow-up activities in terms directive in relation to indigenous peoples, but of controlling land invasions and protecting it would also assist its borrower countries in xii Environment Department Papers Preface preparing the legal and institutional conditions excellent historical framework for such future for the cultural survival, ethno-development analytical and operational work on indigenous and protection of the lands and natural land and natural resource rights and is worthy resources of indigenous peoples and their of close attention by the World Bank and other communities in the years ahead. The current international development agencies. report by Roque Roldán Ortega provides an Shelton H. Davis, Ph.D. Senior Fellow, Center for Latin American Studies, Edmund A. Walsh School of Foreign Service, Georgetown University, Washington, DC Previous position: Social Sector Manager, Latin America and the Caribbean Region, World Bank References Cited Roldán Ortega, Roque, Indigenous Peoples of Wali, Alaka and Shelton Davis, Protecting Colombia and the Law: A Critical American Indians: A Review of World Bank Approach to the Study of Past and Present Experience with Indigenous Land Situations (Bogota, The Gaia Foundation, Regularization Programs in Lowland South COAMA and ILO, 2000). America (World Bank, Latin America and Sánchez Gutiérrez, Enrique and Rolda Ortega, the Caribbean Technical Department, Roque, Titulación de los Territorios Regional Studies Program, July 1992). Comunales Afrocolombianos e Indígenas World Commission on Environment and en la Costa Pacífica de Colombia Development, Our Common Future (Washington, Banco Mundial, 2002). (Oxford, Oxford University Press, 1987). Uranavi, José, "Bolivia: Statement to the UN World Federation of Democratic Youth, Report from the Indigenous Peoples of Eastern Prepared for the International NGO Bolivia," IWGIA Newsletter (Copenhagen), Conference on Indigenous Peoples and the Numbers 43 and 44, September and Land, Geneva, Switzerland, 15-18 1981. December 1985, pp. 15-22. BiodiversitySeries xiii Acknowledgments The idea of this report came from Claudia for her comments during various versions of Sobrevila, Senior Biodiversity Specialist of the the document. We would also like to thank the World Bank's Environment Department. The colleagues that provided constructive paper was prepared by the author in Septem- comments to the manuscript: Anthony B. ber 2003. We would like to recognize the Anderson, Tania Carrasco, Judith Lisansky, generous help of Karen Anne Luz from the Kathy MacKinnon, and Alberto Ninio. The Environment Department, who synthesized study was funded by the Environment the original report provided by the author and Department. BiodiversitySeries xv A Short History of Indigenous 1 LegalTreatment in Latin America The official policy of all the Latin American rather, it signaled a recognition that the most states towards their indigenous populations expeditious and constructive way to ensure from independence until at least the 1930s was their integration into national societies was to one of assimilation. They used a variety of provide better education, technical training, and coercive means to obtain this goal, from forced financial assistance to the traditionally conversion to Christianity and compulsory use marginalized indigenous populations. of Spanish to outright war. State authorities were particularly keen to abolish the institutions The approval in 1957 of the International Labor of collective territorial property and communal Organization's Convention 107, which lays out government of the native peoples of the norms for the protection and integration of Americas. indigenous peoples in independent countries, reinforced the strategic approaches codified in The justification for this strategy of eliminating the Pátzcuaro Agreement. All the independent native peoples as separate entities was national countries of Latin America and the Caribbean unity. Its philosophical underpinning was a ratified this convention, thereby incorporating it conception of indigenous societies as savage and into their national legal framework, as well as backwards, inimical to the project of building making it part of their international solid and prosperous national societies based on responsibilities. Following the spirit of the economic liberty and representative democracy. convention, some of the new agrarian laws As one republican ideologue put it, national adopted by countries in the region under the unity was only to be found in a society US-led Alliance for Progress included modest characterized by "a single religion, a single proposals for focusing attention on the tongue, and a single lineage." numerous land claims of the region's native peoples. Starting in the 1940s, the relationship between Latin American governments and their The agrarian reforms undertaken widely indigenous populations began to change. In throughout Latin America in the 1960's, April of 1940, the First Interamerican Indigenist although not very successful, did result in the Congress was held in the Mexican city of first important examples of recognition of Pátzcuaro, which generated the Pátzcuaro indigenous land claims since the colonial era. In Agreement, largely based on the indigenous addition, the popular mobilization among policies of the government of Lázaro Cárdenas. campesinos that accompanied these reforms This did not represent a fundamental change in helped strengthen the indigenous movement in the strategy of assimilating indigenous peoples; many countries. As social scientists finally Biodiversity Series 1 Models for Recognizing Indigenous Land Rights in Latin America discredited the notion that indigenous societies Box 1 were stuck in a backwards phase of human Status of ILO 169 Ratification development, the indigenous movement Ratified Not Ratified throughout the region also gained the support of other sectors of society. Argentina Belize Bolivia Chile Starting at the beginning of the seventies, this Brazil El Salvador new vision of relations between the state and Colombia Guyana Costa Rica Nicaragua indigenous peoples began to be integrated into Ecuador Panama new constitutions as they were adopted by the Guatemala Suriname various countries. The Panamanian Honduras Uruguay Mexico Constitution of 1972 took the first timid steps in Paraguay this direction, while the Peruvian Constitution Peru of 1979 laid out a clearer vision. Other Venezuela constitutions with a new focus on indigenous Source: ILO website. issues followed: after waging war against their indigenous populations, new constitutions in it has created an institution, the National Guatemala in 1985 and Nicaragua in 1987 Corporation for Indigenous Development evinced a clearer recognition of indigenous (CONADI) to do so. Four other countries-- rights; these were followed by constitutions Guyana, Suriname, Uruguay, and El Salvador-- codifying more progressive indigenous policies have no legal recognition of indigenous rights in Brazil (1989), Colombia (1991), Paraguay as of 2003 when this review was done. (1992), Argentina (1994), Bolivia (1995), Ecuador Today, there is substantial variation in the (1998), Venezuela (1999), and Mexico (2001). degree of legal recognition of indigenous rights With the exception of Panama and Nicaragua, across the Latin American region. Broadly all the other countries mentioned above have speaking, the countries of Latin America can be also ratified ILO Convention 169, the divided into three groups, according to their Convention concerning Indigenous and Tribal legal treatment of their indigenous populations: Peoples in Independent Countries (see Box 1), which updates ILO 107 by recognizing, among Superior legal framework: These countries other indigenous rights, the very close have made a high-level commitment, through relationship between traditional lands and either their constitution, international cultural identity for indigenous peoples. agreements (such as ILO 169) or both, to indigenous rights, and they have followed The situation in other countries of Latin through with a regulatory framework and America is mixed. Some, like Honduras and concrete actions to ensure those rights, Costa Rica, haven't recognized indigenous including legal recognition of indigenous lands. rights in their constitutions, but they have This group includes Bolivia, Brazil, Colombia, ratified ILO Convention 169. Chile has neither Costa Rica, Panama, Paraguay, and Peru. recognized indigenous rights in its constitution nor ratified the convention, yet it has a law that Legal framework in progress: These countries establishes norms for the protection and have made a high-level commitment, through development of the indigenous population, and 2 Environment Department Papers A Short History of Indigenous Legal Treatment in Latin America either their constitution, international Deficient legal framework: These countries agreements (such as ILO 169), or both, to have not entered into any high-level indigenous rights, but they have not followed commitments on indigenous rights at the legal through with an adequate regulatory level, and they have made little effort to framework, and they generally have not made respond to indigenous requests for legal significant progress in recognizing indigenous recognition of their land claims. This group land rights as the other countries have. This includes El Salvador, Guyana, Suriname, and group includes Mexico, Guatemala, Honduras, Uruguay. Nicaragua, Venezuela, and Argentina. Box 2 Typology of Indigenous Legal Regimes Superior legal Legal framework Deficient legal framework in progress framework Bolivia Argentina El Salvador Brazil Guatemala Guyana Colombia Honduras Suriname Costa Rica Mexico Uruguay Panama Nicaragua Paraguay Venezuela Peru Biodiversity Series 3 Description of Indigenous Land Tenure Regimes in Selected 2 Countries of Latin America In this section, we will review the current legal the Amazonian and Chaco indigenous groups at frameworks for indigenous land tenure in the end of the 1980s and early 1990s, when the selected countries, illustrating the range of national government issued a series of executive experience in this issue across Latin America. In decrees recognizing some areas as being under the following section, we will look more closely indigenous control and possession. Some at several countries that are relatively advanced sectors of Bolivian society regarded these in terms of legally defining indigenous land decrees as unconstitutional. The constitutional tenure. reform of 1994 contained a clear recognition of the special rights of indigenous people and communities, including the character as legal Countries with a Superior Legal incorporation (personería jurídica) of indigenous Framework groups, their right to full ownership of their These countries--Bolivia, Brazil, Colombia, ancestral lands, and their autonomy to exercise Costa Rica, Panama, Paraguay, and Peru--all their own traditional forms of internal have high-level judicial instruments government and administration. (constitutions or international agreements) recognizing indigenous land rights, as well as In 1996, the National Agrarian Reform Service some national legal and regulatory framework Law was promulgated; along with the operationalizing the high-level instruments. regulations later issued for that law, it defines These countries provide the best practice models the institutions and procedures for legal for land legalization, despite their shortcomings. recognition of indigenous lands. Despite Nevertheless, there are important differences serious obstacles, caused by the bureaucratic between them, which the following country by requirements of the law, budgetary limitations, country discussion will make apparent. the country's political crisis, and opposition to the delimitation of indigenous lands, Bolivia has managed to recognize some 5.4 million hectares Bolivia of indigenous lands to date. The 1996 law, Although it has the largest proportion of however, was considered flawed by indigenous indigenous population in South America, and groups for several reasons: the technical rules despite a powerful popular movement, Bolivia for deciding land allocations, for example, led to only recently began to offer legal redress to smaller areas than the indigenous groups indigenous land claims. The first measures claimed, and gave priority to titling agricultural were taken as a result of popular mobilization of colonists on indigenous-claimed land, leading to the fragmentation of indigenous land claims. A Biodiversity Series 5 Models for Recognizing Indigenous Land Rights in Latin America mass protest in 2000 led to the correction of formalizes indigenous rights and specifically some of the flawed regulations. Serious guarantees perpetual usufruct by indigenous obstacles to indigenous titling remain in Bolivia, people of their lands. including the complexity of the bureaucratic procedures required for land recognition, as In 1995, Brazil adopted new legislation well as the inability of indigenous communities revamping the process of indigenous lands to define their own administrative and regularization. This was Decree 1775 which management models for their lands. replaced the previous set of rules and regulations, Decree 22. The addition of a civil administrative grievance procedure and a 90 Brazil day period of contention, during which non- At the beginning of the 20th century, in reaction Indians can challenge the identification and to the harm inflicted on indigenous groups as a delimitation of indigenous lands, was protested result of official policies promoting the by national and international NGOs, exploitation and settlement of the country's particularly because decree was retroactive and tropical forests, Brazil adopted constitutional because of concerns that already delimited provisions aimed at establishing a paternalistic lands would be reduced in size. Despite the system in which indigenous people would be protests, the vast majority of claims and protected by the state. It is generally believed grievances to date against existing indigenous that this policy was inspired by a military lands have been dismissed , and the primacy of officer with humanitarian interests, General indigenous rights upheld. Cándido Mariano Silva Rondón, after whom the The resulting demarcation and recognition of state of Rondonia was later named. A series of indigenous lands has been truly impressive. In institutions devoted to protecting Brazil's total, some 103.7 million hectares, or more than indigenous people were created: first the Indian 12% of the national territory of Brazil, have been Protection Service (SPI), around 1911, that was recognized as indigenous lands, possessed by disbanded in 1967 when massive corruption in indigenous groups representing only 2% of the the agency was exposed; followed by the national population. Serious problems remain, National Council for Indian Protection (CNPI) however. Many indigenous lands continue to some years later and then the National Indian be invaded by landless campesinos or miners, Foundation (FUNAI) in 1968. In 1988, Brazil and some of the lands that have been adopted a new constitution that stipulated that recognized are tied up in court with legal all indigenous lands in the country would be challenges from third parties. Another issue of demarcated within a space of five years. Article concern is that 15 years after the passage of the 231 of the Brazilian constitution states that new Constitution, the Indian Statute, which is in indigenous people have primary, inherent and clear contradiction to the Constitution, remains unalterable rights to their lands they in force. permanently inhabit and use for productive activity, preservation of natural resources and cultural and spiritual well-being. Indigenous Colombia lands are the property of the State; however, the In Colombia, the new constitution adopted in regularization process recognizes and 1991 was the first to clearly recognize the 6 Environment Department Papers Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America special rights of indigenous peoples. Even programs in these indigenous territories, and before this high-level juridical support to they receive state funds for their own health, indigenous land recognition, however, education and social programs. Colombia had had an active program of recognizing indigenous lands, a product of its In 2001, the Colombian Government presented a execution of the agrarian reform laws that were reform to two articles in the Political passed starting in the 1960s. At first these lands Constitution, to guarantee the stability of state had the character of simple provisional reserves; funds for social investment in territorial entities later the concept of indigenous reservations including indigenous resguardos. Law 715 of (resguardos) was adopted from the old Indian 2001 was subsequently enacted, to regulate the Law, which guaranteed the indigenous distribution of these funds, and their use. The communities full ownership and a high degree same law establishes that indigenous resguardos of autonomy in management of their lands. will receive a specified percentage of the available funding each year, to be used for The Colombian judicial framework grants many education, health, housing, drinking water and rights to the indigenous peoples, which are productive projects. aimed at guaranteeing the protection of their social and cultural integrity. In 1989 the Costa Rica Colombian Government ratified Convention No.169 of the International Labor Organization Costa Rica does not have specific norms on (ILO) concerning the rights of indigenous and indigenous peoples in its Constitution, and it tribal peoples (Law 165, 1994.) The Political only ratified ILO 169 in 1993. Nevertheless, like Constitution of 1991 defines the Colombian other countries in the region, Costa Rica has nation as multi-ethnic and pluri-cultural, and historically established programs to benefit the advanced the right of indigenous peoples to indigenous population. In 1973, the National manage the political and administrative affairs Indigenous Affairs Commission (CONAI) was of their territories. In addition, indigenous created and made responsible for dealing with peoples are defining their own plans for land- indigenous demands, including land claims and use and environmental management, which the task of "integrating indigenous communities provide the framework for the sustainable use into the process of development." Four years of natural resources in their territories, based on later, the Indigenous Law of Costa Rica (Law their traditional knowledge 6172 of 1977) was issued, which gave more support to the territorial claims, separate The 1991 Political Constitution also opened the cultural identity, and administrative autonomy space for the creation of a new territorial of indigenous groups. It also decreed that division within Colombia, the Indigenous indigenous reserves are inalienable1, Territorial Entity (ETI). The proposed law imprescriptible2, untransferable3, and regarding the establishment of the ETIs has been exclusively reserved to the indigenous approved by the Senate and is currently being communities that inhabit them. Although there discussed in Congress. In the meantime, has been serious criticism of the existing legal indigenous authorities in the resguardos are protections for indigenous people, and although legally responsible for land-use and social the state has been working on a new legal Biodiversity Series 7 Models for Recognizing Indigenous Land Rights in Latin America formulation that would be more consistent with development. In 1992, the country adopted a ILO 169 and current thinking on indigenous new Constitution which recognizes the special rights, Costa Rica has made significant progress rights of the indigenous population and in recognizing indigenous lands under the recognizes them as ethnic groups with a existing legal framework. Various decisions of separate culture identity. One year later, the country's Supreme Court have also Paraguay ratified ILO 169. contributed to defining an acceptable degree of autonomy for indigenous communities in Like other constitutions in Latin America, the management of their legally-recognized lands. Paraguayan Constitution gives indigenous lands the attributes of being inalienable, unmortgageable4, and imprescriptible. The Panama constitution and the Indigenous Community The Constitution of 1972, for the first time in Law also guarantee indigenous groups a high Panamanian history, declared that indigenous degree of autonomy in the management of their lands must be given as property, and not under lands and conduct of their internal affairs. some type of usufruct arrangement. Using this Unfortunately, these general laws have not been disposition, the Legislative Assembly has supported by a body of regulations that defines recognized indigenous lands through a special precisely what powers the indigenous law for each indigenous group, in which the communities have, resulting in the potential for legal figure of the comarca or collective conflict between the communities and the landholding is created. To date, six comarcas national government and its specialized have been created in Panama, covering more agencies. than 20% of the national territory. Each is In practice, experience with the implementation governed by an executive decree, which gives of these higher-level legal norms has been the indigenous group wide latitude for mixed. With the passage of the Indigenous administering its lands, under the general rules Communities Statute, the state created the established in the legislative act creating that Paraguayan Indigenous Institute (INDI), a comarca. Interestingly, Panama has not ratified dependency of the Ministry of Defense; INDI ILO 169, although it had previously ratified ILO has wide powers to enforce the guarantee of 107 in 1971. Nevertheless, its model of land indigenous rights, including land rights. On regularization and indigenous rights is land rights, INDI acts in close collaboration with recognized as innovative and effective, the Institute of Rural Wellbeing (IBR), the respectful of indigenous autonomy and agrarian reform agency in Paraguay. INDI has supportive of community initiative. received some financial support from the government, as well as from some churches and Paraguay humanitarian agencies. Nevertheless, excepting for some small areas that indigenous In 1981, Paraguay passed the Indigenous communities have managed to retain over the Communities Statute (Law 904), which gave years, the lands they claim have to be purchased indigenous peoples certain rights, including the from current owners, at high cost; if the owners right of legal incorporation and the right to are not interested in selling willingly, they must obtain the land necessary for their survival and 8 Environment Department Papers Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America be expropriated by an act of Congress. A recent internal governance of indigenous communities, study showed that in the Eastern Region of the the relatively long and rich experience of Peru country, where according to the law the in this area is worth close examination. communities require a minimum of 240,000 hectares, only slightly more than 66,000 hectares Countries with a Legal Framework in had been passed to them by 2002; in the Progress Western Region, where they should have at least 1.2 million hectares, they have only been given These countries have made a high-level about 972,000 hectares. This same study shows commitment to indigenous rights, in their that after an unsuccessful attempt on the part of constitution or the adoption of international the government in 2002 to reduce INDI's legal agreements or both, but they have not functions and programs, its budget and staff followed through with an adequate regulatory were cut. The resulting situation is even more framework. Despite this, they offer some problematic for the indigenous communities, interesting insights into the process of land since some of the land that has already been regularization. The countries included in this given to them has not yet been fully paid for, section are Ecuador, Guatemala, Honduras, and INDI's current insolvency could preclude Mexico, Nicaragua, and Venezuela. finalization of the payments. Ecuador Peru In 1998, Ecuador approved its current Peru has a long and rich legislative history in constitution and at the same time ratified ILO favor of indigenous rights, and in particular 169. Like the Venezuelan Constitution (see land rights. The constitutional provisions in below), the Ecuadorian Constitution guarantees Peru that recognize indigenous rights are a wide gamut of indigenous rights; as in probably the earliest in the Americas. The Venezuela also, the Ecuadorian Constitution country also ratified ILO 107 and, in 1994, ILO uses the future tense to refer to indigenous 169. It was also the first country to adopt rights, which seems to imply that further action special legal regimes for the governing of by the national legislature is necessary in order indigenous communities, in the 70s and 80s. to fully establish those rights. Even before The first Law of Native Communities was approving the new Constitution, Ecuador adopted in 1974; a later law on the same topic is managed to regularize a significant extension of still in force. The 1979 Constitution recognized indigenous lands, utilizing the existing agrarian indigenous lands as inalienable, unmortgage- legislation. Because of the lack of specific able, and imprescriptible; the current indigenous procedures for land recognition, Constitution (1993) represents a step backward these lands were titled not to legally recognized on this issue, weakening the legal treatment of ethnic groups or communities, but rather using indigenous lands by making them subject to whatever form of organization, or lack of being bought and sold. Despite serious organization, the groups had at the moment the obstacles, gaps, and ambiguities in the titles were granted. Thus, indigenous lands treatment of different indigenous issues, have been titled to individuals, cooperatives, including the land legalization model and the Centers ("Centros") or Associations of Centers Biodiversity Series 9 Models for Recognizing Indigenous Land Rights in Latin America (Centers are an organizational form introduced neither the constitutional provisions nor the by religious missionaries among some ratification of ILO 169 by Guatemala in 1996 has indigenous groups), Communes (a legal figure led to much progress on this issue. Guatemala established by several laws in 1937, has relied on its body of agrarian laws to characterized by communal ownership), and distribute lands to indigenous communities, ethnic territories. The only one of these that has which has led to land being granted in a any relationship to the indigenous tradition is hodgepodge of forms, depending on the the Commune, but this was only used in the particular law being used or the government highlands, and not in the Amazon, where the agency involved. Because of this, some lands vast majority of the titled land was located. have been issued under individual titles, while others have been titled as "collective agrarian The lack of legal norms associated with the patrimony" or in the form of cooperatives. titled entities led to the application of the Civil Since most of these titles required payment by Code provisions for communal property being the new title holders, the titles were precarious, applied to these titles. While the new subject to being revoked if the payments were Constitution says that indigenous lands are not made on time. It appears that very few inalienable and cannot enter into the free indigenous families were able to obtain their market in property, it appears to require that the definitive titles in the end, after completing characteristic of inalienability be granted payments spread out over a period of 10 to15 through a subsequent law passed by the years. legislature, such that all the lands that have been titled would need an additional legal These lands distributed under the agrarian action in order to become inalienable. As can be reform laws have not afforded indigenous seen from this analysis, the Ecuadorian communities the ability to manage their legislature urgently needs to issue the laws territories and their internal affairs according to necessary to support the constitutional their own traditions, as opposed to civil law. declarations on indigenous rights, including not For the vast majority of the communal lands only the specification of an appropriate that the indigenous communities still control, procedure for titling indigenous lands, but also they have only very precarious titles, or no titles a legal framework for the incorporation of at all. The only alternative model for legal indigenous groups and a model for land possession of their land is in the form of a non- management after lands are titled to those profit civil association under the Civil Code, a groups. modality that exposes them to all the risks of private property and of the free market in land, which can be brought about at the behest of any Guatemala one of the members of the association. The Constitution of 1985, which is still in force, recognizes the right of indigenous communities In the 1995 peace accords that put an end to the to the lands they have historically utilized and civil war in Guatemala, the government proclaims the responsibility of the state to committed itself to forming a commission with provide state-owned lands for those groups that indigenous representation to propose need lands "for their development." In practice, procedures and institutional mechanisms for 10 Environment Department Papers Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America guaranteeing indigenous land tenure, as well as Nevertheless, there has been very little progress defining the use and management of natural in recognizing indigenous land rights. While resources on indigenous lands. While the some land has been adjudicated to indigenous members of the commission have been named, communities in the last few decades, this has there has been little additional progress to date. been done using the general agrarian reform laws, and not under a special land regime better The 1999 Law of the Land Fund, according to its suited to their traditional landholding practices. preamble, was intended to operationalize the Serious contradictions between the agrarian promises about indigenous land titling made in reform laws and other regulations, especially the peace accords, but in effect it has only three those governing forests and environmental dispositions that concern the indigenous issues, have further slowed and weakened any population: it promises technical assistance to progress toward adopting a real policy to indigenous groups in obtaining legal recognize indigenous territorial rights in the incorporation (personería jurídica); it promises country. The very few properties that have been that the Land Fund will not to be applied to adjudicated in favor of indigenous peoples, lands held by indigenous groups; and it also through the efforts of missionaries or, more protects indigenous sacred and ceremonial sites recently, under the agrarian reform laws, have from acquisition under the program. It does been granted as regular property under the civil not, however, define procedures for indigenous code, which impedes the autonomy of the land legalization, leaving Guatemala without communities in managing their lands. any specific legislation doing so, despite the commitments in the Constitution and the peace accords. Mexico Historically, Mexico has been a leader on Honduras indigenous policy-making in Latin America. The 1917 Constitution, product of the first In its Constitution of 1982, Honduras recognizes revolution of the 20th century in 1910, the responsibility of the state to "establish guarantees a wide range of rights to campesinos, measures for the protection of the rights and within a framework of communal lands. Article interests of the indigenous communities that 27 of the original text recognizes "communal exist in the country, and especially of the lands property for tribes and peoples who de facto or and forests in which they live." The de jure will retain their communal status, and Agricultural Sector Modernization and who will continue to enjoy in common the use Development Law (Decree 31-92), passed in of the lands, forests, and waters that belong to 1992, promised to title community lands to them or that have been returned to them under indigenous communities for free, but this the law of 1915." Later, the concepts of tribes provision has never been applied. and peoples were replaced by the concepts of ejidos and communal populations which are still In 1995, Honduras ratified ILO 169, and in 1997 in effect today. From then on, the ejido was the the state decreed the "creation of a commission official form of collective production of to prepare a draft law to regulate issues related campesino communities, within which ethnicity to the indigenous and tribal populations." was obscured. Biodiversity Series 11 Models for Recognizing Indigenous Land Rights in Latin America From the beginning of the 19th century, there is recognizing the indigenous claims to the land documentary evidence of indigenous groups they have traditionally occupied. Sixteen years that insisted on the return of their ancestral later, Nicaragua has not recognized more than lands and the recognition of their own forms of 5% of the lands claimed by indigenous groups. communal property. In 1990, Mexico was the Although the Autonomy Law defines first Latin American country to ratify ILO indigenous lands as inalienable, intransferable, Convention 169. In 1992, Article 27 of the unmortgageable, and imprescriptible, the Constitution was reformed, allowing the recognition of indigenous lands that has parcelization and privatization of the ejidos, and occurred has been carried out under the normal the fourth Article recognized the multicultural agrarian laws, without any special regimen that composition of the country's indigenous integrates traditional indigenous usage and population norms. While this may not affect the intangibility5 of these lands, it clearly puts the In 1996, the Agreements of San Andrés were indigenous groups in a vulnerable position in signed in Chiapas, and both sides of that which they could easily lose their lands, either conflict committed to the construction of a new de jure or de facto. In December 2002, after a national compact defined by the cultural long struggle by the indigenous groups, the differences between Mexico's citizens. National Assembly approved a law which both Nevertheless, the expectations of the indigenous defines the procedures for recognizing peoples were not fulfilled. The proposed law on indigenous lands and provides a model for the "Indigenous Rights and Cultures," sent to administration and management of those Congress in 2001, was substantially modified, territories. It is not clear whether there is especially in terms of the autonomy, political will in Nicaragua at this point to responsibility, and rights of the indigenous enforce this law. peoples. The Law characterizes indigenous peoples as entities of public interest, rather than legal entities, and it does not define important Venezuela concepts such as territory, habitat, and lands. It Venezuela adopted its current constitution in also maintains the reform of Article 27, which 1999, and it gives full recognition to indigenous allows for the alienation of ejidal lands. rights. In 2002, the country also ratified ILO 169. Before this time, the state had recognized Nicaragua indigenous lands under the usual procedures for titling lands to campesinos. These lands were In 1987, Nicaragua made great strides forward given in collective form, but since no legal in formal recognition of indigenous land rights recognition of indigenous groups existed, they on the Atlantic Coast with the passage of a new were given to groups of particular individuals constitution and the Autonomy Law (Law 28 of by name. In the absence of legislation providing 1987). These legal instruments granted political for their management, these lands came under and administrative autonomy to the Atlantic the Civil Code, and this imposed serious Region of Nicaragua, where the majority of the limitations on their use by indigenous groups. indigenous population lives, and they The new constitution, like the Ecuadorian, committed the national government to describes indigenous rights in the future tense, 12 Environment Department Papers Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America leading to the conclusion by some that these treasures of the country form part of the rights must be embodied in specific laws by the Salvadoran cultural heritage, which is placed national legislature before taking effect, and to under the protection of the state and is subject date this has not happened. The Law for to special laws for its conservation." There is no Demarcation and Guarantee of Habitat and explicit recognition in the Constitution of the Lands for Indigenous Peoples, passed in 2001, existence of ethnic groups, indigenous peoples, did not do so, although it did define some or separate cultures as part of the national concepts and new strategies of the state on population, but the clauses mentioned above indigenous issues. Currently, the National could help form a vague case for legal Assembly has before it a new draft law, called acceptance by the Salvadoran state of various the Law of Indigenous Peoples, introduced by cultures within the national polity. El Salvador indigenous legislators in November of 2002, did ratify ILO Convention 107 in 1958, but this which would define not only the procedures for document alone is not sufficient to support a recognizing indigenous lands, but also policy of land recognition for indigenous indigenous autonomy, the authority of peoples. indigenous representatives and their relationship to the state, as well as providing the Guyana administrative model for the legally recognized indigenous territories. Guyana's 1980 Constitution, like El Salvador's, contains general assurances of the importance of the different communities that comprise the Countries with a Deficient Legal national population, and along with its 1996 Framework constitutional reforms and Legislative Act #11 of These countries have not entered into higher- 2000, establishes the obligation of the state to level agreements on indigenous land rights, and create a Commission for Ethnic Relations. The they have made little or no effort to respond to Commission's responsibility is to fight indigenous demands for legal recognition of discrimination against and promote the their land claims. They include El Salvador, development and equality of opportunity for Guyana, and Suriname. persons belonging to the country's minority ethnic groups. Several additional laws--the Amerindian Law of 1951, amended in 1976 and El Salvador subsequently, and the Law of the Amerindian El Salvador is a good illustration of a country in Lands Commission, passed in 1966--did which the legal framework protecting establish legal recognition of indigenous land indigenous rights is tenuous. The 1983 rights. However, the procedures, requirements, Salvadoran Constitution establishes equal and institutions that these laws establish are so treatment for all people, regardless of cumbersome, incomplete, and ambiguous, and nationality, race, gender, or religion. The grant so much discretion to the executive Constitution also recognizes the existence of branch while leaving the indigenous groups indigenous national languages which should be without any ability to intervene in the process, respected and protected by law. It also states that in practicality they have had very little that "the artistic, historic, and archaeological effect. Guyana has never passed the laws Biodiversity Series 13 Models for Recognizing Indigenous Land Rights in Latin America required to establish the above-mentioned rebel groups signed the "Agreement for Commission for Ethnic Relations, and it has not Conciliation and National Development." In ratified ILO 169. this document, the government promised to pass a law recognizing the territorial claims of indigenous groups living in tribal communities, Suriname generating the institutions and procedures to Laws dating to its period as a Dutch colony ensure land titling and land access for both decree that indigenous settlements and subsistence and market-oriented exploitation by Maroons6 be respected, but this respect appears indigenous groups. In this same agreement, the to have been more a question of common government promised to initiate a national courtesy than a legal treatment. Suriname dialogue on the ratification of ILO 169. None of gained its independence in 1975, and its these promises were ever fulfilled, and to date, Constitution of 1987, reformed in 1992, does not Suriname lacks even the minimal legal explicitly recognize the ethnic or cultural framework necessary to recognize the existence diversity of the population, although it does of its indigenous peoples, let alone to guarantee prohibit any type of discrimination. their rights. In 1992, to put an end to an armed uprising that had divided the country, the government and 14 Environment Department Papers Common Problems in the Legal Framework for Recognition of 3 Indigenous Lands There are many common threads among · Imprecision in the writing of indigenous countries in the preceding discussion, both in legislation. In many cases, the legislation the elements that lead to successful legal uses terms that are not defined, and which frameworks for the support of indigenous lands, are imprecise in meaning, or to which and those that lead to less successful outcomes. different definitions have been given in Common problems affecting the legal different cases. Examples of this problem framework for indigenous lands in Latin include the use of the concept of America include the following: "autonomy" and the mention of "renewable" and "non-renewable natural · Failure to develop the body of laws resources," all of which can be interpreted necessary to operationalize the rights in various ways. guaranteed by the constitution or international treaties. For example, in · Failure to carry out adequate consultation Ecuador, while the Constitution guarantees with indigenous communities. While a indigenous land rights, no law has been few states, such as Ecuador, Colombia, and passed to define how they are to be granted. Peru, have tried to define participation in a The only course of action available is to use meaningful way, most states have not the Civil Code, which is actually in conflict engaged in meaningful consultation with with some constitutionally guaranteed indigenous communities over issues that characteristics of indigenous land, such as are in their vital interest. Often consultation inalienability. is in reality simply the act of informing indigenous representatives of programs that · Time-consuming, overly complex, or are already approved and about to begin, poorly conceived procedures for gaining without giving them time to study the legal recognition of indigenous lands. In proposals, inform their own communities, Bolivia, for example, the procedures or properly comment on them. required in order to resolve conflicting land claims and assign indigenous land rights are · Lack of legal definition of ownership extremely slow and burdensome. In the rights over, and use and administration of, case of Peru, indigenous groups seeking natural resources in indigenous territories. their lands must first be legally There is nothing intrinsically difficult about incorporated, a procedure that can itself precisely defining the rights indigenous take as long as gaining the recognition of the peoples have over natural resources on their indigenous territory. lands. Nevertheless, in the vast majority of Biodiversity Series 15 Models for Recognizing Indigenous Land Rights in Latin America the Latin American countries this legal areas that harbor the most important definition is either ambiguous or completely biodiversity are the ancestral lands of lacking. A contributing factor to this indigenous peoples. Since the region's legal situation is probably the desire of states not system cannot recognize two titles to the to lose control over the income from same land, there is often a conflict between concessions of valuable natural resources. areas that have been declared some type of Where indigenous land rights are not protected area by the national government, recognized, rights over natural resource use but which are claimed as ancestral territory are unlikely to be legally defined. by indigenous people. While a clear Conversely, where indigenous land rights solution would be to recognize indigenous are well defined, such as in Colombia and land with restrictions that would preserve Panama, indigenous rights over natural its biodiversity values, states have been resources have been recognized without reluctant to do so, perhaps because, as great controversy. mentioned above, they fear losing control of the invaluable natural resources of those · Lack of adequate legal definition of the areas. Nevertheless, recently Colombia and management of indigenous territories that Bolivia have made some progress towards overlap with national parks or other resolving these contradictions, which gives protected areas. In many countries, the hope that they are not insoluble. 16 Environment Department Papers Case Studies in Indigenous Land Tenure and Its Implications for 4 Natural Resources Management In this section, we will focus in on four of the · Autonomy: The amount of autonomy in countries with superior legal frameworks for managing their own affairs that is accorded indigenous land tenure--Colombia, Costa Rica, to an indigenous group as a consequence of Panama, and Peru--and examine how the their land rights, including legal recognition differing bodies of law in each country as an indigenous group (personería jurídica), contribute to or undermine the ability of and their ability to use their own traditional indigenous people to manage their natural legal and justice systems resources. The laws governing land rights recognition in these countries have several key · Legal recourse: The legal actions to which characteristics which determine the degree of they have recourse in order to defend their security and authority the indigenous people lands. exercise over the land the state has recognized These characteristics also shape the ability of as theirs. These include the following: indigenous peoples to participate actively in the · Land tenure regime: The character of the conservation of the ecosystems and natural right over land that has been recognized, resources on their lands, and they have been which can range from outright (fee simple) repeatedly identified by indigenous ownership through several types of organizations as the key attributes necessary for restricted ownership to simple use rights their acting as effective agents of conservation. (usufruct) Below, we examine each of these characteristics · Territorial recognition: Recognition of land for each of the countries and analyze the in a form that corresponds to the concept of implications for indigenous management of an indigenous territory, as defined by ILO their lands. This information is summarized in 169 Box 3. · Natural resources rights: The sorts of rights Land Tenure Regime over natural resources ownership, administration, and use granted as a In Costa Rica, the laws and regulations that consequence of the land right treat the subject of indigenous land tenure refer to indigenous lands as "reserves." Traditionally, · Tenure security: The degree of security of in Latin America this word has referred to lands the type of land title dedicated to a specific purpose, but over which the state retains final ownership. During the Biodiversity Series 17 Models for Recognizing Indigenous Land Rights in Latin America Box 3 Key Characteristics of Indigenous Land Tenure, by Country Costa Rica Panama Colombia Peru Land tenure Fee simple. Fee simple. Fee simple. Fee simple over regime agricultural lands; usufruct over forest lands. Territorial Territories, Not legally Territories, Territories, recognition according to ILO defined, but in according to ILO according to ILO 169, but in practice 169. In practice, 169. In practice, practice very few indigenous lands indigenous lands indigenous lands of the recognized function as are recognized as do not function as indigenous areas territories. reservation lands; territories, due to could be courts have reduced size, described as supported full limited rights over territories. indigenous forest land, and control as a the fact that lands communal can be bought territorial space. and sold. Natural resources Resource No clear legal No clear legal Legally, the state rights property rights definition. In definition, but the owns all not addressed in practice, wide courts have renewable and indigenous laws; power to supported non-renewable forest property administer and exclusive rights of resources. rights according use natural indigenous Indigenous to Civil Code; resources on communities to communities guaran teed their lands. administer and have exclusive exclusive rights in use the natural rights to use use and resources on resources on administration of their lands. their land. resources on Communities their lands. share responsibility for administration of resources with the state. Tenure security Strong tenure Very strong Strong tenure Laws provide for security; no tenure security, security; no strong tenure apparent since each apparent security, but in contradictions comarca is contradictions practice, with other laws. created by its with other laws. government own individual norms and plans law. are detrimental to the security of collective landholdings. (continued) 18 Environment Department Papers Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management Box 3 (continued) Key Characteristics of Indigenous Land Tenure, by Country Costa Rica Panama Colombia Peru Autonomy Legal Legal Legal Legal incorporation of incorporation of incorporation of incorporation of indigenous indigenous indigenous indigenous groups is groups with groups is groups is recognized; comarcas is recognized; wide recognized; customary law for recognized; wide powers to formally, wide internal affairs; powers to administer their powers to wide powers to administer their lands and internal administer their administer their lands and internal affairs according lands and internal lands and affairs according to customary affairs according community to customary law; laws; to customary affairs. recognition of reservations are laws, but in comarcas as seen as political practice the state political and and exercises administrative administrative substantial entities. entities. control. Legal recourse Same rights as Comarca Indigenous Same rights as other citizens. authorities are groups can other citizens. Various public servants initiate judicial Little judicial institutions and can initiate actions. Various record of charged with judicial actions. institutions upholding defending Various charged with indigenous rights. indigenous rights. institutions defending Various charged with indigenous rights. institutions defending charged with indigenous rights. defending indigenous rights. first phase of indigenous land recognition in the Kuna territories in San Blas were recognized Costa Rica, it appears that recognized lands in this fashion. The 1972 Constitution, however, fulfilled this traditional role as reserves. But guarantees indigenous communities "the Law 6172 of 1977 decrees that indigenous lands reservation of the necessary lands, and are "the property of the communities," and communal ownership of those lands, to achieve subsequent Supreme Court decisions have their social and economic development," and all confirmed the full ownership of their lands by the laws that have created comarcas have done indigenous communities. so recognizing full indigenous ownership. Similarly, in Panama in the years preceding the In Colombia, all lands that are recognized to Constitution of 1972, recognition of indigenous indigenous peoples are recognized in the form territories was carried out under the legal of resguardos, or indigenous reservations, a legal concept of reserves, and the law made clear that concept that dates to colonial times and which final ownership rested with the state. Some of has been given full recognition in the Biodiversity Series 19 Models for Recognizing Indigenous Land Rights in Latin America Constitution. Historically, these reservation Among our case studies, Costa Rica and lands have always been seen as belonging as a Colombia have ratified ILO 169, and have communal territorial space to the indigenous fulfilled their obligations vis-à-vis this groups. The highest tribunals in Colombia have international agreement by embodying in their repeatedly acknowledged the full ownership of laws or constitutions language guaranteeing the indigenous peoples of their lands. that indigenous lands are inalienable, unmortgageable and imprescriptible, making In Peru, the current Constitution clearly them virtually untouchable legally. Although recognizes the different sorts of property in land Peru has also ratified ILO 169, its current (individual, communal, and associative), but constitution gives indigenous people the right to does not state which type is appropriate for buy and sell their lands, and although it states indigenous communities. The first Law of the imprescriptible character of the lands, Native Communities (1974) clearly stated that limitations occur in the event that lands are indigenous communities would have full abandoned; the territoriality of indigenous property rights over their lands. But the second lands proclaimed in ILO 169 is not therefore Law, which is still in force, makes an exception supported by Peruvian law. Panama is a for forest lands, which are to be "ceded in particularly interesting case, in marked contrast usufruct" to indigenous groups, while ultimate to Peru. While Panama has not ratified ILO 169, ownership is reserved to the state. the body of laws that has supported the establishment of the comarcas clearly Territorial Recognition demonstrates that Panama, more than any other Latin American country, recognizes the Three of the four case study countries (Costa territorial nature of indigenous lands and the Rica, Colombia, and Peru) have ratified ILO status as peoples of indigenous communities. 169, and consequently have formally accepted This can be deduced from the size of the that indigenous groups are to be considered territories recognized to them, their authority peoples and that their lands should be over use and management of their natural recognized under the legal concept of territories resources, and from the autonomy of their self- as defined in that Convention. While there is government within their territories. not complete consensus on what this actually means, for purposes of this paper, we consider that the status of peoples means that indigenous Natural Resources Rights groups are associations that are perpetual and The majority of indigenous peoples living in not transitory, in contrast to legal associations forest areas depend on the natural resources of such as cooperatives, which can be established their lands to fulfill their subsistence needs. and dissolved over time. The legal concept of Hunting, fishing, gathering of forest products, indigenous territory is one in which indigenous and small garden plots still form the basis of peoples retain full ownership of their lands. their household economy. The security and Territories have the character of being permanence of their control and use of the inalienable, unmortgageable and imprescrip- natural resource base is actually more important tible, so that indigenous territories, like the to most indigenous groups than direct peoples that own them, are perpetual in nature. ownership of the land itself. The demand for 20 Environment Department Papers Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management ownership, in fact, derives from the need to natural resources that exist in the comarca are ensure their access to these resources, so it is of the collective patrimony of the Emberá- particular importance to examine how the Wounaan people." Under the assumption that different national-level legal regimes handle this this provision is not meant to give a right to the aspect of indigenous ownership. Emberá-Wounaan that other indigenous groups do not enjoy, this statement clearly indicates an In Costa Rica, the legal norms do not expressly intention to grant indigenous communities state whether the state or the indigenous groups control over at least some natural resources. control natural resources on indigenous lands. Finally, all the laws and regulations of the The Indigenous Law and the Forestry Law seem comarcas do grant a high degree of autonomy to indicate, however, that at least the forest itself and authority to the indigenous communities in would belong to the titled indigenous the administration, management, and use of communities, since titled lands are considered natural resources on their lands. to be under private ownership, which includes the ownership of forests on those lands. The In Colombia, neither the Constitution nor the indigenous law has two other key provisions laws clearly designate whether the indigenous that govern natural resources rights. One says people or the state has ownership of natural that "the communities will have full legal resources in indigenous territories. power to acquire rights and contract obligations Nevertheless, the Constitutional Court has of any type," while the other states that "only interpreted provisions in the Constitution and these indigenous people will be able to ILO 169 to conclude that indigenous groups do construct houses, fell trees, exploit timber own natural resources on their lands, resources or plant crops for their own benefit." unequivocally stating that "the recognition of These provisions demonstrate that the the right of collective property of the resguardos indigenous communities have wide by indigenous people includes their ownership administrative power over natural resources on over renewable natural resources." In terms of their land, and that the right to utilize those administration, management, and use of natural resources is exclusive to their communities. resources, the Constitution itself gives administrative authority to the indigenous In Panama, it is not yet clear if the state authorities, also stating that one of their explicit recognizes the authority of indigenous functions is to "ensure the preservation of the communities over natural resources on comarca natural resources" on their lands. Additionally, lands. The Constitution defines the goods and the regulations that establish the management rights of the State without referring to forests and governance systems of the resguardos and wildlife, which would seem to imply that recognize specific responsibilities of the on private lands, the titleholder would have the indigenous authorities in natural resource right to those natural resources. The laws that management, which should be carried out recognize the comarcas do not explicitly define according to the customs and use patterns of the authority over natural resources, and the communities. Organic Law (carta orgánica) of most of the comarcas also do not address this topic. Peru is one of the Latin American countries that However, the Organic Law of the Emberá- categorically decrees in its body of law that both Wounaan comarca in the Darién states that "the renewable and non-renewable natural resources Biodiversity Series 21 Models for Recognizing Indigenous Land Rights in Latin America are the "patrimony of the Nation," and that the overlaps with a protected area, which is not an state is sovereign in the use of those resources. uncommon problem; this could in some cases Both the Law of Native Communities and the affect the rights indigenous groups have in Law of Campesino Communities give local those areas. communities exclusive rights to utilize the natural resources on their lands and a certain In Colombia, the procedures for recognizing amount of decision-making power over those indigenous lands have been defined in a body resources, but they are severely constrained of law dating back to the 19th century and within the limits of their traditional use including constitutions, international patterns. Formally, the responsibility for agreements, and the various agrarian laws, with administering those resources is shared between their special provisions for indigenous the local communities and the state. communities. The legal solidity of the resguardos created under this body of law has been tested in various court cases, and these Tenure Security cases have been uniformly resolved in favor of There are many elements that contribute to the the indigenous communities. As in the case of relative security of land tenure, but here we will Panama, there is a slight ambiguity in the case focus on two: whether the titles have been of lands that are both protected areas and given following the proper regulations and indigenous lands; while a number of legal procedures for that purpose, and whether those judgments have clearly established the norms that govern land recognition are in supremacy of indigenous titles, indigenous conflict with other laws or regulations within rights over natural resources use in those cases the legal regime of a particular country. are unclear. Costa Rica is a simple case in which the In Peru, as in Colombia, there is a relatively responsibilities and procedures for indigenous long history of recognition of indigenous land land recognition are clearly stated in the body of rights, as described above. In addition to the law and regulations. There do not seem to be procedures that have been defined by the law any serious contradictions or ambiguities for recognizing indigenous lands, indigenous between these responsibilities and procedures groups seeking title must first establish their and other laws and regulations, such as could legal incorporation through an entirely separate lead to legal questioning of titles granted to process. These two legal procedures are so indigenous groups. complicated and burdensome that it can take years, even decades, to complete them. All the In Panama, the Constitution defines as the titles that have been granted to indigenous responsibility of the state the recognition of the communities in Peru to date have followed land claims of indigenous groups. The state has these procedures, which would seem to ensure chosen to fulfill this responsibility through the that the tenure they grant is quite secure. But emission of a special and specific law for each two factors mentioned previously may impinge comarca, which has served to make these titles upon the seeming solidity of the titles. One is very secure. One small area of ambiguity, the fact that the communities have only use however, is the lack of definition of rights and rights over forested lands, and not ownership responsibilities when an indigenous area rights. The other is the open contradiction 22 Environment Department Papers Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management between the responsibility for perpetual found in the various laws and regulations protection of indigenous land rights guaranteed creating and administering the comarcas. These by ILO 169 and the provisions in the uniformly recognize the legal incorporation of Constitution of 1993 that allow for the the indigenous communities; the ability of the dissolution of any sort of association, including communities to administer their territories indigenous groups, which would directly according to their own norms and traditional impact their land rights. authorities; their right to manage and use their natural resources, subject to applicable national Autonomy law; and their right to participate in initiatives related to the improvement and development of The autonomy demanded by indigenous their communities. Although the laws of the peoples as essential to their being able to comarcas and their Organic Laws recognize the exercise their fundamental rights is nowhere application of ordinary legal procedures within legally defined, but the following conditions are the indigenous territories, traditional authorities commonly supposed to comprise it: are recognized as having a role to play in those areas of conflict over which they have · The ability of indigenous groups to legally traditionally had authority. The comarcas are incorporate, so that they can exercise their seen as political and administrative entities tied rights and contract obligations as a group to the political structure of the state, and their · The ability to use their traditional legal authorities are seen as fulfilling a public norms and system of justice function. · The ability to decide their own form of In Colombia, by law and by tradition, internal government and to manage their indigenous communities are seen as inherently relations with external groups possessing legal incorporation, without having to formally apply for that status. To gain · The ability to participate in analyzing and recognition of this status, they simply have to deciding on issues that affect the group's present documentation of the naming of their interests. leaders, a document which also serves to give legal recognition to those leaders. This is true In Costa Rica, the Indigenous Law states that for all indigenous communities, with or without "indigenous communities have the legal resguardos. Those with reservation lands are capacity to acquire rights and contract acknowledged to have these further rights: the obligations of all kinds." It further adds that "the population of each one of the reserves right to choose their own authorities; to constitutes a single community, administered by administer and govern their territory through an executive council, representative of the entire those authorities and to manage and use its population...The reserves will be governed by natural resources; to exercise rights and contract the indigenous people using their traditional obligations in relation to the administration of communal structures or the laws of the Republic their territories; to maintain relations and enter that are applicable." into agreements with outside entities, public or private, in issues related to the interests of the In the case of Panama, all the provisions that communities; to define their own programs for govern the autonomy of indigenous peoples are the development and improvement of their Biodiversity Series 23 Models for Recognizing Indigenous Land Rights in Latin America communities; and to fulfill those legal functions legal system. In addition to the factors that have traditionally corresponded to them. examined above in the section on tenure security, another important factor are the legal In Peru, the Constitution states that "native and instruments or legal recourse to which the campesino communities have legal existence and titleholders have access to prevent the violation incorporation. They are autonomous in their of their property rights, or that help them re- organization, their communal work, and the use establish their rights in the case of violation. and free disposition of their lands, as well as in Below we will examine the situation of legal their economic and administrative functions, recourse in each of the case study countries. within the framework of the law." The various laws that govern indigenous and campesino Like all other citizens, indigenous people in affairs give them ample capacity for decision- Costa Rica have the right to turn to the courts to making in their internal affairs, including that of defend their rights, acting in this case as a elaborating their own statutes for the legally recognized group and not merely as organization and functioning of their individuals. For more than three decades, the communities. The regulations of the Law of state in Costa Rica has empowered various Native Communities establish the General institutions to act on behalf of indigenous Assembly of community members as the communities to protect or promote their rights. maximum authority in those communities and Among the most important is the National states that the "method of decision-making will Commission for Indigenous Affairs, or CONAI, be consistent with the traditions of the which is comprised of the President of the community." Furthermore, the Constitution Republic, different universities, ministries, and grants to indigenous authorities the right to representatives of the indigenous communities. "exercise jurisdictional functions within their One of the several functions of this body is to territories in accordance with customary law, so "guarantee respect for the rights of indigenous long as this does not violate the fundamental minorities, ensuring that the state enforces the rights of the individual." individual and collective land rights of the Indians." Although the law apparently gives indigenous people in Peru a great deal of autonomy, the In Panama, the law gives the indigenous reality is somewhat different. The state has authorities the right to defend their land rights created such a complex body of regulation of through legal action. Panama has also created these general provisions in the law that in fact it various institutions with the responsibility to exercises a great deal of control over indigenous ensure the rights and defend the interests of communities in their internal governance and indigenous people. Without doubt, the most their development initiatives. This is especially important of these is the Indigenous Affairs true in the management of natural resources in Commission of the Legislative Assembly, which the indigenous territories. oversees the study and design of indigenous land proposals, as well as generally defending the fundamental rights of indigenous peoples. Legal Recourse Another recently-created institution is the There are various factors that influence the National Council on Indigenous Development stability of property title to land within any (CNDI), part of the president's office, which is a 24 Environment Department Papers Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management consultative and deliberative body on policies Development; and the Indian Affairs and public actions regarding indigenous people. Commission, a multi-sectoral group in which various government agencies and In Colombia, indigenous communities have representatives of indigenous communities some very strong instruments at their disposal participate. An important challenge in terms of to assure the protection of their territorial legal recourse for indigenous people in Peru is property rights, or to vindicate those rights in the limited and unsuccessful experience they the case that they are violated. These include have had in this field, since there is no history of the widely-recognized legal solidity of the the judiciary upholding their rights in the past. institution of the resguardo; the existence of efficient legal resources for making claims through the court system, introduced by the Conclusions 1991 Constitution; the strong public As the case studies amply illustrate, the legal consciousness about indigenous rights, as situation of indigenous land rights in the manifested in a series of legal decisions in favor countries of Latin America is highly varied. of indigenous rights by the Constitutional Court There is no single pattern of legal rights that over the years; and the recent establishment of guarantees a successful outcome on the ground administrative bodies with responsibility in the for indigenous land tenure; rather, different defense of the fundamental rights of indigenous combinations of rights can yield strong or weak peoples, including land rights. Nevertheless, results, depending on the context and the extent the internal conflict within Colombia which has of political will. Nevertheless, the case studies existed for decades and has recently worsened, do show that legal systems more strongly has affected many indigenous areas, and this support indigenous land rights when they take puts at grave risk the effective control of many into account not only land ownership itself, but of the indigenous communities over their also the security of that ownership and whether territories. it is conceptualized within the framework of the concept of an indigenous territory. Land rights In Peru, indigenous communities can utilize the are also stronger when the legal system legal recourse that all Peruvian citizens have to concurrently recognizes other rights over defend their fundamental rights. Peru has also natural resources on indigenous lands and the created several institutions specifically rights of indigenous peoples to manage their dedicated to defending indigenous rights. own affairs. Recognizing the land rights of Among these are the Public Defender, which indigenous peoples then is not a simple has a special program for the defense of the question of granting title, but involves Native Communities of the Amazon; the addressing a more complex set of interrelated Technical Secretariat of Indigenous Affairs legal, social, and political issues in order to be (SETAI), under the Ministry for the effective and secure. Advancement of Women and Human Biodiversity Series 25 Notes 1. Inalienable: Incapable of being lawfully 6. The Maroons are the descendants of Black alienated, surrendered or taken away by slaves brought as plantation laborers from another. Africa to Surinam in northeastern South America, starting in the last half of the 2. Imprescriptible: Incapable of prescription. (A seventeenth century. The ancestors of the property which is held in trust is imprescriptible; major Bush Negro tribes escaped from the that is the trustee cannot acquire a title to it by plantations of coastal Surinam to the forests prescription; nor can the borrower of a thing get of the interior in the late seventeenth and a right to it by any lapse of time). early eighteenth centuries. There they developed distinctive societies reflecting a 3. Untransferable: Incapable of being blending and adaptation to local conditions transferred from one person to another. of various African socio-cultural patterns, 4. Unmortgageable: Not susceptible of being and incorporating strong Amerindian mortgaged or given as collateral to access influences in their material culture--for credit. example, horticultural practices, hunting and fishing techniques, crafts such as 5. Intangibility: Something that cannot be basketry, the use of therapeutic plants, and touched. so forth. Biodiversity Series 27 Bibliography Books, Essays, and Articles CAN: Declaración de Machu Pichu, sobre la Democracia, los Derechos de los Pueblos ADEPESCO y PEMASKY: Declaración de Popa Indígenas y la lucha contra la Pobreza, Julio II. [www.observatorio.bioetica.org/ 29 del 2001. [www.sela2.sela.org/ popa2.htm]. public_html/AA2K1/ESP/cap/N62/ Alianza Mundial de los Pueblos Indígenas: Los rcap62-19.htm]. Pueblos Indígenas y las Áreas Protegidas. Caro, Miguel Antonio: Obras, Instituto Caro y En: Pueblos Indígenas, Bosques y Cuervo, Bogotá, 1962. Biodiversidad. Alianza Mundial de los Pueblos Indígenas-Tribales de los Bosques Cletus Gregor Barié: Pueblos Indígenas y Tropicales. Documento IWGIA No.19, Derechos Constitucionales en América Copenhague, Dinamarca. Latina: Un Panorama, BM. 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Conservación de los Ecosistemas Naturales ac.uk/Rainforest/indigesp.html ]. Forestales y el Desarrollo de Plantaciones Forestales en Centroamérica, suscrito en Zulema Lehm: El Parque Nacional Isiboro- Guatemala el 29 de Octubre de 1993. Secure (Bolivia). En Derechos Indígenas y Conservación de la Naturaleza (asuntos Smith, Richard y Pinedo, Danny: Comunidades relativos a gestión). Documento Iwgia No. y A´reas Naturales Protegidas en la 23, Copenhague, 1998.Copenhague, 1998. Amazonía Peruana (9ª. Conferencia Bienal Trabajo presentado en la llamada de la IASCP), Zimbabwe, 19-24 de Julio del Conferencia de Pucallpa-Perú, realizada en 2002. Marzo de 1997. Taller sobre Prácticas de Manejo Sostenible de Bosques: Síntesis de Estudios Monográficos Legal Texts sobre la Forma de Integrar Investigación y Acuerdo para la Conciliación y el Desarrollo Extensión al Manejo Sostenible de Bosques, Nacionales en Suriname, Agosto 8 de 1992 Estudio de casos. Kochi, Japón, 22 y 25 de (unofficial translation). noviembre de 1996. [www.nrcan.gc.ca/cfs/ kochi/search _s.html]. BID, Departamento de Desarrollo Sostenible: Compilación de Legislación Indígena TCA: Tierras y Áreas Indígenas en la Amazonía, Latinoamericana. [www.iadb.org.sds/ind/ volumen 54, Secretaría Pro Tempore, Lima, ley/index.cfm]. Perú, Enero de 1997. Constitución Política de Bolivia, de 1994, Tresierra, Julio C.: Derechos de Uso de los actualizada al 2002. Recursos Naturales por los Grupos Indígenas en el Bosque Tropical. Banco Constitución Política de Brasil, actualizada al Interamericano de Desarrollo, Washington, 2002. D.C. 1997. [www.rimisp.cl/boletines/bol7/ doc3.pdf]. Constitución Política de Colombia, de 1991, con reformas hasta el 2001. UICN: Política de la UICN para Incluir la Equidad Social en la Conservación y Uso Constitución Política de Costa Rica, de 1949, actualizada al 2001. 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Constitución Política del Perú, de 1993, con Decreto No. 27800 de Marzo 17 de 1999, reformas hasta el 2001. Reglamento para el aprovechamiento de los Constitución de la República de Venezuela, de Recursos Forestales en las Reservas 1961. indígenas, de Costa Rica. Constitución de la República Bolivariana de Ley de Dominio que define Principios de la Venezuela, de 1999. Política Territorial de Suriname, de 1987 (unofficial tralation). Constitution of the Republic of Suriname, 1987. Ley de Explotación Forestal, que Define Corte Constitucional de Colombia: Sentencia T- Formalidades para Obtención de Licencias 380-93, 13-IX-93, M. P. Eduardo Cifuentes de Explotación Forestal en Suriname, de Muñoz. 1992 (unofficial tralation). Decreto Ejecutivo No. 1 de 11 de Enero del 2000, Ley de Mineria de Suriname, de 1986. por el cual se crea el Consejo Nacional de Desarrollo Indígena ­CNDI- de Panamá. Ley del 12 de Enero del 2001, de Demarcación y Garantía del Hábitat de los Pueblos Decreto Supremo 03 del 79-AA, por el cual se Indígenas de la República Bolivariana de reglamenta la Ley de Comunidades Nativas Venezuela. (Decreto No. 22175 de Mayo 9 de 1978) del Perú. Ley No. 21 de 7 de agosto de 1980, por la cual se crea en Parque Natural Nacional de Darién, Decreto Supremo 08 de 1991-TR, por el cual se Panamá. Reglamenta la Ley 24656 de abril 13 de 1987 (de Comunidades Campesinas) del Perú. Ley No. 22 de 8 de noviembre de 1983, por la cual se crea la Comarca Emberá Wounaan de Darien, Panamá. 32 Environment Department Papers Bibliography Ley 28 de 1987, de Autonomía de las Dos Ley 6172 de 1977, o Ley Indígena de Costa Rica. Regiones de la Costa Atlántica de Nicaragua. Ley número 7575 del 5 de febrero de 1996, o Ley Forestal de Costa Rica. Ley 37 de Septiembre 21 de 1962, por la cual se aprueba el Código Agrario de Panamá. Ley 19253 del 5 de Octubre de 1993, que establece normas sobre protección, fomento Ley 41 de Julio de 1998, General del Ambiente y desarrollo de los indígenas, y crea la de Panamá. Corporación Nacional de Desarrollo Indígena ­CONADI, en Chile. Leyes No. 49 de 1984, No.7 de 1992 y No.3 de 1995, que crean y definen funciones a la Ley 24656 de abril 13 de 1987, por la cual se Comisión de Asuntos Indígenas de la aprueba la Ley de comunidades Asamblea Legislativa. Campesinas del Perú. Ley 89 de 1890, sobre Resguardos y Cabildos de Ley 26505 de Julio 14 de 1995, de inversión Indígenas, de Colombia. privada, del Perú. Ley 160 de 1994, de Reforma Agraria, de OEA: Proyecto de Declaración Americana sobre Colombia. los Derechos de los Pueblos Indígenas, artículo XVIII. Ley 445 del 13 de Diciembre del 2002, que define el régimen de propiedad comunal de OIT: Convenios 107 de 1957, Relativo a la los pueblos y comunidades étnicas de las Protección e Integración de las Poblaciones regiones autónomas de la Costa Atlántica de Indígenas y Tribuales, y 169 de 1989 sobre Nicaragua. Pueblos Indígenas y Tribales. Ley 854 de 1963, por la cual se crea el Instituto ONU: Proyecto de Declaración de los Derechos de Bienestar Rural de Paraguay. de los Pueblos Indígenas de la ONU, artículos 5 a 32. Ley 1715 del 18 de Octubre de 1996, de Servicio Nacional de Reforma Agraria, de Bolivia. Proyecto de Ley de los Pueblos Indígenas de la República Bolivariana de Venezuela. Ley 5251 de Julio 9 de 1973, que crea la llamada Comisión Nacional de Asuntos Indígenas ­ The 1980 Constitution of Guyana. CONAI ­ en Costa Rica. The Amerindian Lands Comission act., Cap. Ley No. 5.371 de 5 de Diciembre de 1967, por la 59:02., of Guyana cual se crea la Fundación Nacional del Indio ­FUNAI-, del Brasil. The Forest Act, Cap. 67:01, of Guyana. Ley 6001 de Diciembre 19 de 1973, por la cual se The Mining Act. No. 20 of 1989. adopta el Estatuto Nacional del Indio, del Brasil. Biodiversity Series 33