Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

esources in lands to which they have the title, except for areas that are explicitly reserved
by the State or that have exclusive rights for excluding third parties.” 111 At the same time,
the forestry law specifically prohibits granting concessions to third parties in native or rural
community lands; 112 this allows for the interpretation that indigenous people have the right of
exclusive use over forest resources on their lands, which would be of more consequence with
the current international norms in Peru; however, the current legislation in Peru leaves room for
many contradictory interpretations.
However, since the indigenous people directly exploit forest resources-- according to the
Article 43 of the forestry law of 2001 and Article 11 of law decree 22175 of 1978 which indicate
that the legal regime that applies to native forest logging is the same forestry law and not
special rules regarding indigenous people --, it is possible to affirm that forest harvesting by
native communities is subject to the elaboration and approval of forest management plans.
These plans should be subject to approval by the appropriate authority, and the request
to carry out forest management should be accompanied by “a certified copy of a community
certificate where they agree to carry out said harvest.” 113 These rules do not distinguish traditional
use activities from forest harvesting. Still, the demand such a community agreement for carrying
out the said harvesting is noteworthy, as it is a legal requirement, in the studied legislations, that
only exists in Peru.
Overlap between NPA and Native Community Lands
The law is ambiguous regarding the restriction of rights of use and enjoyment of natural
resources and also about the existence of the overlap between protected areas and native
community lands. Legislation appears to favor environmental regulations over indigenous
people’s special rights of ownership and use of natural resources.
On one hand, Article 54 of the Environmental Code (Legislative Decree Nº 613/1990)
establishes that the Peruvian State recognizes native and rural communities’ ownership rights of
111 Law 26821 of June 10, 1997. Article 18.
112 Supreme Decree 014-2001-AG of August 4, 2001. Article 43. – Forests in native and rural community lands are
those located within territory that belongs to native and rural communities. Their use is subject to the provisions
of the law and present regulations. Forest concessions are not granted to third parties in native or rural communities.
(Emphasis by author)
113 Law 27308, Forestry Law of Wild Fauna. Article 12 and Article 149 of the Supreme Decree 014-2001-AG of
August 4, 2001.
Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t 59