Overlap of Indigenous Territories and Protected Areas in South America Executive Summary Paúl Cisneros and James McBreen
©Vladimir Aguilar
TABLE OF CONTENT SUMMARY AND INTRODUCTION ______________________________________________________ 2 1. REGIONAL ANALYSIS OF THE OVERLAP SITUATION ____________________________________________ 4 2. CURRENT GOVERNANCE CONDITIONS ____________________________________________________ 13 3. CASE STUDIES: INDIGENOUS GOVERNANCE IN MADIDI AND BAHUAJA‐SONENE _____________ 14 4. RECOMMENDATIONS FOR THE REGION _________________________________________ 24 TABLES Table 1: Summary of the overlap situation in South America .................................................................................... 5 Table 2: Types of overlap between protected areas and indigenous territories ....................................................... 6 Table 3: Legal conditions for indigenous governance in protected areas of South America ..................................... 8
ÍNDICE DE FIGURAS Figure 1: Total number of overlapping national protected areas by country and distribution by management category ______________________________________________________________________________ 13 Figure 2: Protected areas selected for the study and their overlap with indigenous territories _______________ 15
SUMMARY1 This first data collection and discussion of the current overlap situation in the region was carried out to contribute to the understanding of the complex relationships between protected areas and indigenous territories in South America. It has been determined that 214 (or 27%) of the 801 national protected areas in South America overlap to some degree with indigenous territories. Five types of overlap were identified through the data collection process. Some indigenous territories in protected areas have already been titled, while others are at some point in the process of titling or transfer. There are also territories recognized as areas traditional possession and use by indigenous peoples; territories recognized through the participation of indigenous peoples in co‐management, co‐ administration and concession mechanisms; and territories recognized through the participation of indigenous peoples in co‐management committees or other similar bodies. While the legislation partially reflects the recognition of the rights of indigenous peoples, the design and implementation of public policies or secondary laws on this subject is still quite uneven in the region. The definition and application of specific public policies for the recognition of indigenous rights, if properly regulated and financed, could help achieve greater coherence among national or local development plans and identity‐based life plans or development strategies, while at the same time contributing to the improved management of both protected areas and indigenous territories.
INTRODUCTION Protected areas are key elements of countries’ biodiversity conservation strategies. To a greater or lesser extent, they have been designed to maintain the functionality of natural ecosystems, which, given the social dynamics affecting them, would not be able to survive without some level of formal protection. Despite progress in the countries’ identification and recognition of vast land tracts, protected areas face serious threats as a result of the implementation of other public policies, particularly from those aimed at ensuring the supply of materials and energy to sustain economic growth, and which to a certain extent influence, and sometimes limit, the protection of protected areas, as well as their functionality and the biological evolutionary processes they sustain. Protected areas previously considered empty spaces are being occupied by numerous communities and peoples – many self‐described as indigenous – which throughout the last four decades have demanded the recognition of certain rights for the lands and natural resources that the areas aim to protect. This traditional or ancestral occupation has led some indigenous peoples to oppose the existence of protected areas because they limit the use of certain resources or stand in the way of the recognition of individual property rights, whether collective or individual. When indigenous territories are understood as spaces occupied by native peoples and considered a necessary condition for their social and cultural reproduction, they enable these peoples to obtain other rights, including the right to exercise their own forms of social organization and government. The dramatic alteration of the natural environment has been relatively minor in these areas, and in many cases there is a clear vision of continuity between culture and nature. 1
This executive Summary corresponds to the subcomponent: “Territorios indígenas y areas protegidas de America del Sur” part of IUCN Global Project: “Improving natural resource governance for poverty reduction” funded by DFID. For more information: Aracely Pazmino (
[email protected]); translation: Jennifer Stimson
2
In principle, both of these aspects appear to provide ideal opportunities to carry out conservation work of the kind that is expected in protected areas. However, the cultural changes resulting from the intensification of social relations increasingly lead to indigenous peoples’ practices – considered relatively more in harmony with nature – becoming the exception and not the rule. In this sense, protected areas play an important role in the consolidation of indigenous territories since they can reduce the intensity of economic impacts and some social interactions, and can thus consolidate the processes of recognition and respect for the rights of indigenous peoples. This can only happen if the public policies that regulate protected areas and indigenous territories are properly coordinated from the beginning and throughout their implementation. In turn, indigenous lands on which an integrated use of nature is practiced can contribute greatly to the achievement of protected area conservation objectives. Thus, the relationships between protected areas and indigenous peoples and communities are an essential dimension of environmental management, and the necessary management tools must be developed to strengthen some of the advantages of the overlap between protected areas and indigenous territories. IUCN is committed to this challenge and has prepared this document to contribute to the understanding of the complex relations between these two important forms of territoriality and use of space and natural resources in South America. To this end, it carried out a study that represents the first data collection and discussion on the situation of overlap between protected areas and indigenous territories in South America.2 This executive summary is divided into two sections. The first section presents and discusses the results of the analysis of the overlap between protected areas and indigenous territories in South America. The second section analyses two case studies and, based on them, makes recommendations to better understand the relationships in overlapping areas in order to design appropriate management tools.
Methodological notes The diversity of the countries in the region regarding the state of consolidation of their systems of protected areas, and the progress made in the recognition of indigenous territories, makes it difficult to fully understand their interactions from a regional perspective. Therefore, this document should be read and analysed taking into account the methodological limitations of this exercise. The study was carried out exclusively by gathering information from secondary sources. This was complemented by verifying some specific information through interviews and electronic consultations with State officials, representatives of NGOs working on the issue, and experts from IUCN’s World Commission on Protected Areas. Only protected areas managed by the central or federal State government were considered, not private protected areas or those created and managed by local, regional or departmental governments. Nor was the management effectiveness of the protected areas 2
The complete version can be found on IUCN‐Sur’s website www.iucn.org/sur and the Conservation and Social Equity Portal (CES): www.portalces.org 3
analysed; however, it is recognized that the existence of many ‘paper’ protected areas can limit the capacity of third parties to conserve biodiversity in shared governance schemes. Since this study was based on a review of each country’s legal framework in order to establish the formal governance conditions in protected areas, state information was privileged over other sources. This is not always reflected in the calculation of the overlap, which took into account the existence of territories with some kind of formal recognition through the participation of indigenous peoples or communities in management or other committees. Two elements must be considered when reading this document with respect to the legal frameworks. First, an effort was made to determine, as far as possible, the recognition of rights in protected areas using the same legislation that establishes and regulates these systems. For most of the countries, information on this subject came from sources provided in the National Reports prepared for the II Latin American Congress of National Parks and Other Protected Areas in 2007. In many cases, this information was not sufficient to distinguish between rights of use, possession, ownership or the right to the administration of protected areas. Secondly, it was noted that much of the current legislation dates from periods in which the recognition of collectively held territories had not been institutionalized and therefore their existence is not regulated by these instruments. In other cases, the legislation on protected areas makes no direct reference to their management conditions because the recognition of these areas predates the enactment of the laws. While some of the countries in the region (Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru and Venezuela) have ratified ILO Convention 169, which recognizes and guarantees the rights of indigenous peoples, including the rights of ownership and possession (Art. 14); of use, management and conservation of the natural resources on their lands (Art. 15. No. 1), in this study, the influence of this Convention on protected area management was not considered in depth due to the difficulty of tracing its direct application or incorporation into secondary legislation. Finally, it should be considered that the information used in the analysis of the two cases discussed under the first subheading of section 2 corresponds to secondary sources that were marginally cross‐referenced by interviewing key informants for each of the protected areas.
1. REGIONAL ANALYSIS OF THE OVERLAP SITUATION Based on the figures collected on national protected areas in twelve countries in South America, it was possible to determine the number of overlapping areas in each system (see Table 1) as well as the total number of overlaps in each country, broken down by type (see Table 2). 4
Table 1: Summary of the overlap situation in South America
Number of National PA
Percentages of National Protected Territories
Number of overlapped National PA
Percentages of National PA Overlapped
1.31 20 7.6 19 11.3 18.81 4.7 57
Percentages of population self determined as indigenous 3 50.5 0.25 4.6 3.35 25 9.1 5.4
Argentina Bolivia Brasil Chile Colombia Ecuador Guyana Guyana Francesa Paraguay Perú Surinam Venezuela South America
41 29 305 96 55 40 3 29
6 16 79 28 22 15 3 4
15 55 26 29.5 23.6 37.5 100 13.8
28 65 16 95 802
5.7 14.3 12 27.5 ‐
1.35 14.7 4.2 2.3 ‐
9 20 0 22 224
32 30.8 0 23 28
The data obtained for each country have allowed us to identify the areas that, according to the information reported, are inhabited by indigenous populations or where indigenous peoples make use of natural resources. However, this data does not allow us to know the specific type of legal recognition granted by the State to overlapping indigenous territories, or how many overlaps exist in each priority area. Nor is it possible, based on the information collected, to estimate the extent of overlap in the national systems. Of the 802 national protected areas in South America, 224 (equivalent to 28%) have some type of overlap with indigenous territories, whether or not they are recognized as such. The countries reporting a greater proportion of indigenous peoples (Bolivia, Ecuador and Peru) have the largest percentages of national overlapping areas, although they are not necessarily those with the greatest number of overlaps (see Table 2 below). While this is due to their having a smaller total number of protected areas than countries such as Brazil, Chile or Venezuela, it also suggests that territorial recognition in these countries is given to large tracts of land that totally or partially cover more than one protected area and almost completely overlap in some cases of Native Communal Lands (TCOs) in Bolivia. In the case of Ecuador, however, it should be remembered that indigenous territories in protected areas are not titled and that what is officially reported is the recognition of ancestral occupation of these lands. Likewise, in the case of Peru, the figure reflects the high number of areas in which natural resource use has been reported in ancestral lands within protected areas and, above all, the existence of lands known as communal reserves, even though land titling is possible. The case of Guiana, with 100% overlap, is an exception in the region and reflects the small number of protected areas in the country (3), while Suriname’s case, also an exception, is due to a national policy of non‐recognition of the existence of indigenous peoples as collective entities separate from the national society, which has resulted in the negation of their rights both inside and outside the protected areas. 5
The figures collected allowed the initial categorization of the situation of overlap between protected areas and indigenous territories in South America. Five categories or types of overlap were identified through the data collection process. Some indigenous territories in protected areas have already been titled, while others are at some point in the process of titling or transfer. There are also territories recognized as areas traditionally belonging to and used by indigenous peoples; territories recognized indirectly through the participation of indigenous peoples in co‐management, co‐administration and concession mechanisms; and territories recognized through the participation of indigenous peoples in co‐ management committees or other similar bodies. Table 2 shows the collected information by country, broken down by the type of overlap with the protected areas. Each overlap has been counted only once although in many cases two or more categorization criteria are met. Table 2: Types of overlap between protected areas and indigenous territories
Titled Territories
Territories in transition or in process of being titled
Traditional – ancestral posession and use areas
Argentina Bolivia Brasil Chile Colombia Ecuador Guyana Guyana Francesa Paraguay Perú Surinam Venezuela South America
3 ‐ 60 ‐ ‐ ‐ 1 ‐
2 14 14 ‐ 39 ‐ ‐ ‐
‐ 8 ‐ ‐ 72
‐ 1 ‐ ‐ 56
Participation in management committees
Total number of overlaps
8 30 5 120 ‐ 15 1 4
Participation in co‐ managemen, co‐ administration and consession mechanisms ‐ ‐ ‐ 2 ‐ ‐ 1 ‐
‐ ‐ ‐ 1 ‐ ‐ ‐ ‐
13 44 79 123 39 15 3 4
‐ 7 ‐ 54 253
6 ‐ ‐ ‐ 9
‐ ‐ ‐ ‐ 1
6 16 ‐ 54 396
Of the total of 396 overlaps recorded in all of South America, only 72 (equivalent to 18.18 %) correspond to territories recognized through a property title within protected areas. Territories in transition or in the process of being titled make up 14.3% of the total. It should be clarified that it has not been possible to precisely distinguish between titled territories and those in the process of being titled for all countries because some of the information sources used do not distinguish between the different stages in the titling process. Therefore, in cases such as Colombia and Bolivia, although it is known that some indigenous reserves and native communal lands (TCOs in spanish) have completed the titling process, since it is not possible to determine their total number, they have all been included in the category of titling in process. Related to this consideration, it should be noted that the current data collection overestimates the number of territories in the process of being titled. Also, the way in which ownership status is reported in the countries in the region, with reports only including certain categories, leads to an underestimation of the number of titled territories, leaving out, for example, the indigenous territories in Bolivia that do not fall into the category of TCOs. It should be noted that of the 72 cases of titled indigenous territories, eight correspond to the category of indigenous community‐based conservation lands that are recognized as part 6
of national systems of protected areas. These eight are communal reserves in Peru. The case of the community conserved area of the Wai Wai people in Guiana has also been included in this category although it does not form part of any national system. Most of the cases of overlap (63.8 % of the total) correspond to areas within protected areas that are recognized as lands traditionally belonging to and used by indigenous peoples. This recognition is important to strengthen the indigenous peoples’ exercise of their right to territory; however, in some of the cases presented, the recognition of their possession and use is accompanied by restrictions on who makes decisions in these areas. In the case of Chile, for example, the principle of self‐determination of indigenous peoples is quite limited because a state institution, the National Forest Corporation (CONAF), makes the decisions without formally involving indigenous peoples or analysing the scope of their participation in the management of the lands they use. Finally, it should be noted that in calculating overlap in Bolivia, the 30 TCOs found in the buffer zones of some of the national protected areas were counted as confirmed cases of overlap. On the other hand, the nine cases of overlap that were indirectly identified through the participation of indigenous peoples or communities in co‐management, co‐administration and concession mechanisms imply the recognition of the ancestral use of resources but not the recognition of property within protected areas. In general, these are cases where the management relations between public and traditional authorities indicate a certain recognition of the exercise of rights in protected areas under mutually agreed conditions. The three types of participation mechanisms are considered to be equivalent to each other since no information is available to systematically distinguish between them across countries. Finally, in the category of participation in management committees, there is a case on Easter Island in which the CONAF is participating on the Island Development Committee. This case of cooperation between the State and the Rapa Nui indigenous people is not related to a particular type of contract, but rather to the collaborative coordination of actions that link management by the indigenous peoples with the management of the protected area on a larger scale of land‐use planning than that of the national park. The number of overlaps in the region is greatly underestimated by the figures in Table 2. It is not possible to determine whether what is counted as an overlap with a protected area involves two or more indigenous peoples that make use of or claim separate territories. This is the case, in particular, of the overlaps that are counted only through the recognition of ancestral use or possession. In the case of Ecuador, for example, 15 overlaps have been taken into account, of which some, such as Yasuní National Park, involve two different peoples, Kichwa and Waorani, whose territories overlap with the area on several non‐ adjacent spaces. However, given the impossibility of adequately separating the different indigenous territories involved in the overlaps, they have only been counted as one overlap. This may also be the case with the indigenous reserves in Colombia, particularly with regard to Afro‐Colombians.
Legal conditions supporting indigenous governance
The overlap between protected areas and indigenous territories creates complex legal conditions that differ between countries in the region. The constitutional recognition of rights and the development and updating of secondary legislation to recognize the rights of 7
indigenous peoples have made the conditions of protected area governance in South America more complex and, to a certain extent, more uniform. The information presented in Table 3 provides a first regional overview of the formal conditions that partially determine the nature of indigenous participation in the governance of protected areas in South America. This table shows eight elements of national laws that determine the nature of indigenous participation in the governance of protected areas. The first two elements correspond to the existence of a national system of protected areas and to the general recognition that countries give to the situation of indigenous peoples through their Constitutions. The following five elements have to do with each country’s recognition, or not, of the rights of indigenous peoples in protected areas, while the last three determine to some extent the degree to which the recognition of these rights may affect the influence indigenous territories can have in national systems of protected areas. Table 3: Legal conditions for indigenous governance in protected areas of South America
Argentina
Bolivia
Legal existence of a national system of PAs
Yes Law 22351
Yes Law of the Enviro nment 1333
Constitutional recognition of indigenous peoples as subjects of rights
Yes Art. 75
Yes Art. 2
Yes Art. 231
Yes Law 23302 and Law 25799
Yes Genera l Regula tion of Protect ed Areas DS 24781 Art. 9
Yes Law 9985 Art. 42 and Decree 4340 Art. 39
No
Yes Law of Popula r Partici pation 1551
Yes Constit ution Art. 231
Yes Constit ution Art. 192 Yes Law 1551, Art 7. Law 1333 Art. 78
Yes Constit ution Art. 231 Yes Law 9985 Art. 42 and Decree 4340
Recognition in national legislation of the right to the possession and use of natural resources in PAs
Recognition in national legislation of indigenous peoples’ own ancestral/traditi onal authorities Recognition of customary law in indigenous territories Existence of legally defined mechanisms for participation in the management of PAs
No
Yes Various NPA resolutions : 204, 227, 145 and
Brazil Yes Law 9985 modifie d by Law 11132 and Decree 5566
Chile
Colombia
Ecuador
French Guiana
Yes Law 18362
Yes Law 99
Yes Forestry Law of 1981
No
No
Yes Art. 171, 176, 246 and 330
Yes Art. 4, 5, 6 and 8
No
Yes Indige nous Law 19253 Art. 35
Yes Decree 622 of 1977, Art. 7
Yes Law of Agrarian Develop ment (1994) Forestry Law Art. 87
Yes Prefector al Decree of 1971 and Ministeri al Decree of 1987
No
Yes Constituti on Art. 246 Law 99 Art. 31
Yes Constituti on Art. 171
Yes Law 19253 Art. 16
Yes Constituti on Art. 246
Yes Constituti on Art. 57
Yes Law 99 Art. 31
Yes Law of Environm ental Manage ment of 1999,
Yes Indige nous Law 19253 Art. 34
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Guyana
Paraguay
Peru
Suriname
Venezuela
No
Yes Law 352 of 1994
Yes Legisla tive Decree 1013
No
Yes Organic Law of Territorial Planning Official Gazette 3238
No
No
Yes Art. 89
No
Yes Art. 119
Yes Law 904 Art. 14
Yes Suprem e Decree 0092006AG
Yes Decree on Land Policy (1982)
Yes Organic Law of Territorial Planning Official Gazette 3238 Art. 23
No
Yes Organic Law of Indigenous Peoples and Communitie s (LOPCI) Art. 6
No
Yes Constitution Art. 260
No
Yes LOPCI Art. 32
Yes Amerindi an Act of 2006, Ch. 29
No
Yes Amerindi an Act of 2006
Yes Law 904 Art. 3
Yes Filoche and Aubertin 2007:7
Yes Amerindi an Act Section 2
Yes Law 904 Art. 5
No
Yes Acts of creation and modificat ion of the Iwokram
Yes Law 352 of 1994
Yes Constit ution Art. 149 Yes Constit ution Art. 149 Yes Genera l Law of the Enviro nment
Law 22351
Secondary legislation that allows and defines the recognition of property rights to territory in PAs
Co-management recognized by national legislation
No
Yes NPA Resolution s HD 204 and 227
and Genera l Regula tion of Protect ed Areas DS 24781 Art. 47 Yes INRA Law17 15 and Law35 45 on Comm unity Renew al
Yes Constit ution Art. 385
Art. 12
No
No
No
No
No Decree 262 of 1977 Art 7
Yes Decree 622 Art. 7
No
Yes Law of Environm ental Manage ment, Art. 28
a and Kaieteur protected areas and the Environm ental Protectio n Act of 1996
No
No
No
Yes Acts of creation and modificat ion of the Iwokram a and Kaieteur
28611, Art 108 and the Law of Protect ed Natura l Areas 26834, Art. 31
Yes
Yes Law 28611 Art 110
No
Yes LOPCI Art. 32
No
Yes Art 28 of the regulat ions of the Law of Protect ed Natura l Areas
No
Yes LOPCI Art. 50 and 146
protected areas Indigenous protected areas recognized as part of the national system Indigenous territories as an element of the territorial organization of the State
No
Yes
No
Yes Constit ution Art. 290 y 291
No
No
No
No
Yes Constituti on Art. 405
No
Yes Amerindi an Act 2006
No
Yes Law 23684 Art. 22
No
No
No
Yes Constituti on Art. 329
Yes Constituti on Art. 60
No
No
No
No
No
No
National systems of protected areas Of the twelve countries studied in the region, nine have legislation that specifically creates and defines a national system of protected areas. The laws regulating these national systems are at different stages of development and updating. The legislation and institutionality of Argentina, Brazil and Chile are under review in order to build a single integrated federal or national system. The current reforms seek different types of mechanisms to link national authorities with regional or local ones, integrate public and community‐based management, and add on different components (public, private, and community‐based). In the case of Peru, recent reforms in the biodiversity conservation sector resulted in the creation of the Ministry of Environment in 2008, with the aim of improving coordination between the different levels of government. The reforms in Bolivia, Ecuador and Venezuela seek to adjust the legislation to new constitutional principles that recognize the rights of the environment and indigenous peoples or apply a new policy towards them. The three countries that do not have national systems – Guyana, French Guiana and Suriname – are also at different stages of progress in the consolidation of their laws. French Guiana’s legislation is the result of a long process of adjustment of local departmental laws
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to French laws on the subject. Guyana and Suriname still have relatively young public institutions that have not yet begun to integrate their protected areas although they have made progress in individually consolidating these areas. However, both countries have the support of NGOs that consider the creation of a national system a priority for biodiversity conservation. As will be seen further on in the case of Guyana, the existence of a national system may have little to do with the extent to which indigenous territories are recognized as part of the national conservation policy. However, the existence of national systems aimed at achieving the integrated development of objectives and management may contribute greatly to the recognition of rights, and to establishing clear rules on the procedures to demarcate the indigenous territories and define the resource uses that can be practiced in them.
Constitutional recognition of the collective rights of indigenous peoples
Twelve Constitutions of South American countries were reviewed, seven of which recognize the rights of indigenous peoples. Despite the support that this constitutional recognition can provide for the exercise of collective rights, the extent to which it has been translated into secondary laws or specific policies varies throughout the region. It is also clear that it has not always led to the recognition of the ownership of indigenous territories in protected area systems or in indigenous community‐based conservation areas within these systems. Nor has this constitutional recognition necessarily meant the express recognition of indigenous peoples’ traditional ancestral authorities. Elements have been developed in the national legislation that provide for the recognition of certain rights. In the case of Chile, this recognition of rights has been based on the ratification of international agreements, while in that of Guyana, it has resulted in secondary legislation, even in the absence of the ratification of international conventions.
Recognition of the right to the possession and use of natural resources in protected areas All of the countries in the region recognize the right of indigenous peoples to the possession and use of the resources in the territories they occupy. This includes not only those lands that overlap with protected areas and are recognized in some form by the national systems, but also those occupied by indigenous peoples, as established by ILO Convention 169. However, in the case of protected areas, the recognition of this right has limits related to conservation objectives, which the indigenous communities and peoples have not always been involved in, or encouraged to be involved in, establishing.
Recognition of ancestral authorities in national legislation The legislative recognition of the capacity of ancestral authorities to make decisions for indigenous peoples represents progress for indigenous people’s exercise of their right to self‐determination and the possibilities for protected areas to conserve natural resources. Studies have been conducted in Ecuador on the perverse effects that environmental or land redistribution policies can have on these peoples when they fail to recognize ancestral authorities and attempt to change the social organization to force indigenous peoples to adapt themselves to development objectives which in many cases are alien to them. Within the region, eight of the twelve countries studied recognize ancestral authorities in secondary
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legislation or at the constitutional level. However, in the cases in which this recognition does not exist, this does not mean that there is a systematic way of denying the legitimacy of the traditional authorities.
Recognition of the right to the practice of customary law
The ten countries that expressly recognize the capacity of indigenous peoples to make decisions based on their customary law limit this capacity to the resolution of internal conflicts and affairs. Although the laws reviewed recognize the State’s commitment to conserve the customs of indigenous peoples, they are not very developed in terms of the ways in which the law is known and applied, and this limits the possibility of plural justice systems existing.
Recognition of property rights in protected areas The recognition of property rights in protected areas is a matter of permanent conflict in some countries in the region, such as Ecuador, Chile or Suriname. Since recognition of the right to the possession and use of resources can place limitations on the type of development that some indigenous communities can undertake, property has been seen as a way of ensuring greater control over their land and, above all, of protecting the resources from third parties. However, there have been occasions, such as in Manú National Park in Peru, when indigenous peoples have rejected the title offered by the State. Only four countries in South America (Bolivia, Paraguay, Peru and Venezuela) expressly recognize the right of indigenous peoples to receive title to their lands in protected areas. Modalities for this vary from country to country. In Bolivia, protected areas can have a double status as both a protected area and an indigenous territory. This ensures the property rights of indigenous peoples and also commits both the State and the peoples to the management of the area. These areas with a double status are part of the national system of protected areas and have even managed to make their management plans compatible with the life plans of the holders of the TCOs, as in the case of the Pilón Lajas Biosphere Reserve. In Paraguay, title is only given to indigenous peoples if their presence precedes the creation of the protected area. Given the lack of mechanisms to determine this condition, issues surrounding this effective recognition create ongoing tensions between the State and indigenous peoples. In Venezuela, the recognition of this right means that indigenous peoples can claim from the State ancestral territories that have been declared protected areas; this is a process for which procedures are still being defined. In Guyana, recognition of property has been given through the disaffection of parts of protected areas to indigenous communities, as in the case of Iwokrama Park and the community of Fairview Village. However, the area titled to the Amerindian population remains linked to the management of Iwokrama Park through agreements between the area’s administration and the village council. Colombia does not recognize the double status of an area as an indigenous reserve and a national protected area, as Bolivia does. What Colombia does have is a declaration of compatibility and the possibility of arranging a special management regime in which both
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the indigenous peoples of the reserve and the unit in charge of the protected areas can establish objectives for natural resource use. In Brazil, titled indigenous territories are recognized as protected areas, but they do not form part of the national system of conservation units. In this case, land ownership is vested in the Union (federal government) even though the right to the possession of indigenous lands and the exclusive use of their resources is recognized. The situation inside the areas is different. Should the indigenous peoples decide to remain in a comprehensively managed conservation unit created in the territory they traditionally occupy, they must adjust their presence to the management objectives set for the area by the State.
Mechanisms of participation in the management of protected areas The development of mechanisms for the participation of indigenous peoples in the management of protected areas is quite uneven in the region. The most recent constitutions, such as those of Bolivia, Ecuador and Venezuela, recognize the right of indigenous people to participate in, and give their prior informed consent to, public decisions that affect them. There are also countries that have developed specific laws on indigenous participation in public management (Chile and Ecuador), others that recognize this right at the level of protected area systems (Argentina and Brazil), and others that recognize it specifically in each protected area or with certain peoples in particular circumstances (Guyana).
Co‐management recognized by national legislation
Co‐management, understood as a way of sharing responsibilities and exercising rights, extends the recognition of rights to decision‐making and the setting of objectives that go beyond the territorial jurisdiction of the actors (peoples and state entities in charge of protected areas). However, neither the recognition of the possibility of participating in the management of protected areas that overlap with territories, nor the recognition of property within these areas, implies a relationship of shared responsibility between the State and the indigenous peoples. Of the twelve countries studied in South America, seven (Argentina, Bolivia, Colombia, Ecuador, Guyana, Peru and Venezuela) have included some form of co‐management in their respective legislation. In these seven countries, the recognition of co‐management is made at different legislative levels: at the constitutional level, as in Bolivia; through secondary laws, as in Colombia, Ecuador, Peru and Venezuela; or through resolutions by the protected area authority, as in Argentina and Guyana. In those countries in which co‐management is not recognized, initiatives have been reported that seek to put it into effect despite the absence of a specific and uniform legal entity for all areas.
Indigenous conservation areas as part of the national systems Within the region, the incorporation of indigenous community‐based conservation areas into national systems has led to a higher level of recognition of the capacity of indigenous territories to contribute to the conservation of nature. Only four countries in the region (Bolivia, Ecuador, Guyana and Peru) recognize these areas as part of their national protected areas. However, there are differences among countries with regard to this recognition. In Bolivia, these are not areas created by indigenous peoples for the sole purpose of conserving
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areas that are recognized as part of the national system; rather, they are lands that, viewed as a whole, have a double status, both as a territory in which these peoples exercise some degree of self‐determination, and as a protected area. In the case of Ecuador, this recognition is given at the level of the Constitution approved in 2009; however, it is not addressed or updated in the current legislation on protected areas (dating from 1981). Although Guyana lacks a national system of protected areas, the State recognizes the protected areas of indigenous communities as national protected areas, as in the case of the territory of the Wai Wai people.
Indigenous territories as an element of the territorial organization of the State Some legal systems recognize the capacity for indigenous territories to become constituent elements of the structure of the State, from which vantage point development planning can be more effectively performed based on the interests of the indigenous peoples. Thus, Bolivia, Colombia and Ecuador recognize in their constitutions that indigenous peoples can form indigenous native peasant authorities, indigenous territorial entities and indigenous territorial ’circumscriptions’, respectively. These entities have been established as the main mechanisms for indigenous peoples to exercise their right to self‐determination over their lands, the use of resources, and both economic and political dynamics. In none of the three cases have these mechanisms been put into practice, whether or not in connection with protected areas. However, it should be noted that their implementation will require better coordination between the national interests of the national system of protected areas and those of the autonomous spaces in which indigenous peoples seek to promote their development.
2. CURRENT GOVERNANCE CONDITIONS Of the 802 national protected areas in the region, 224 overlap with indigenous territories. The protected areas that overlap with a greater number of indigenous territories are those classified in IUCN categories II and VI, representing 42% and 23%, respectively, of the total in the region (see Figure 1). Figure 1: Total number of overlapping national protected areas by country and distribution by management category
Prepared by: Paúl Cisneros
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It is important to emphasize that the largest concentration of overlapping areas in category II (Ecosystem Conservation and Protection) may occur in connection with the maintenance of certain protected areas created with the name of national park but never managed as such3. This regional tendency to categorize protected areas based on origin rather than practice has led to the overestimation of the number of areas that are managed under category II criteria, and consequently may also overestimate their relative significance for the analysis of overlap and governance conditions in the region. Also, the concentration of overlapping areas classified in categories II and VI indicates two different situations for the governance of protected areas. In the first case, the areas have or aim at a relatively high level of protection and may even limit, at least partially, the natural resource uses that indigenous communities and peoples can make in them. In the second case of areas that aim for sustainable management, this actually opens the way for the presence of extraction activities, which are expected to implement responsible environmental management to contribute to sustainability, but do not always successfully do so. While this difference in management is debatable without on‐site verification of the management characteristics of the two groups of areas, it can at least be assumed that the category II areas that overlap in some way with indigenous territories may have a greater presence of conflicts between indigenous peoples and public authorities, or a greater number of shared management mechanisms. With this hypothesis, understanding the conditions of governance in category II areas is a priority because of the similarity of their conditions, at least formally, and because of their shared potential – given the objectives of the category – to contribute to conservation. 3. CASE STUDIES: INDIGENOUS GOVERNANCE IN MADIDI AND BAHUAJA-SONENE Two case studies of category II protected areas are analysed below in order to develop management recommendations to improve the overlap situation between these areas and indigenous territories, and to verify whether the governance conditions established in the national legal frameworks correspond to those actually existing in the areas as a result of the relations between social actors. The cases studied – Bahuaja‐Sonene National Park in Peru and Madidi National Park in Bolivia (see Figure 2) – were selected taking into account that Peru and Bolivia are two of the four countries with the most overlaps (the other two being Chile and Ecuador) and are the only ones that recognize rights of possession within protected areas. Both protected areas are located in the Amazon region where indigenous territories are relatively less fragmented, which makes the analysis of the conditions of shared governance less complex. 3
Víctor Hugo Inchausty (IUCN‐Sur), personal communication, 19 October 2009. 14
Figure 2: Protected areas selected for the study and their overlap with indigenous territories4
Source: extract from Amazonia, 2009 Indigenous governance applied to the field of biodiversity conservation has been defined by IUCN as “protected areas where the management authority and responsibility rest with indigenous peoples and/or local communities through various forms of customary or legal, formal or informal, institutions and rules” (Dudley, 2008:32). Understood in this way, indigenous governance occurs in very few cases, and most protected areas have a form of shared government in which power is shared and there are disputes between the State and the indigenous communities. At least three dimensions of indigenous governance directly influence the exercise of, or struggle over, power to make decisions about protected areas: the form of self‐government, customary law, and the model or models of territorial management (Andrade, et al. 2009:85‐113). Although self‐government is a mixture of traditional practices and others that have been adopted as a result of indigenous peoples’ or communities’ relations with national society, indigenous peoples have their own forms of organization and structures that enable them to 4
Protected areas are shown in different shades of green, and indigenous territories in orange. 15
make decisions on various internal aspects and regarding other groups. The structures and procedures of indigenous governance vary widely and are essential to understanding the forms of indigenous participation in shared management mechanisms for protected areas, such as management committees. Their authorities, procedures for their election, and decision‐making mechanisms are part of a form of self‐government and are important elements of the shared management or administration of natural resources with the State or other actors such as NGOs and businesses. Customary law is comprised of a series of principles that allow a group to resolve differences, faces crises, and make decisions. According to Stavenhagen, “what characterizes customary law is precisely that it is a series of customs recognized and shared by a group (community, people, tribe, ethnic or religious group, etc.), contrary to written laws which stem from a constituted political authority, and whose application is in the hands of this authority, i.e., generally the State” (quoted in De la Cruz, 2006:5). Like all elements of culture, customary law is subject to modifications depending on the relationships established with other groups or on changes in the particular situation to which the law is applied. However, it is recognized that the existence and use of this type of law by indigenous peoples is different from that of the rest of national society, and this difference must be understood in any model of management or governance of a protected area. Customary law in turn may or may not regulate the third element: models of territorial management. Undoubtedly, agreements on territorial management models, or the desire of indigenous peoples to maintain certain models, can clash with the objectives of protected areas. However, stakeholder agreement on the need to maintain natural resources and ecosystem functions seems to outweigh the points of conflict. Discrepancies may arise as a result of the processes of constant change that the indigenous peoples and communities are undergoing, and consequently their need for resources and their ways of having access to them may deviate from the State’s plans for a protected area. On the other hand, the threats facing both protected areas and indigenous territories are similar, including colonization, resource extraction, and pollution. Thus, reaching agreement on management models for the future is one of the most important means of ensuring that protected areas and indigenous territories can coexist in harmony. The following sections briefly describe how these elements of indigenous governance in the national parks of Madidi and Bahuaja‐Sonene, in Bolivia and Peru respectively, contribute to protected area governance. The aim is to understand to what extent indigenous governance influences the shared management of protected areas beyond the formal recognition granted by the State. Based on this discussion, we make recommendations to improve the management of protected areas that overlap indigenous territories.
Madidi National Park Due to its strategic importance for biodiversity conservation on the eastern Andean slope in Bolivia, the Madidi National Park and Integrated Management Natural Area (PNANMI) was created in 1995 with a surface area of 1,880,996 ha. The main structural and functional threat to Madidi is the construction of roads that facilitate colonization and access to resources in areas that are still pristine. This threat increases problems such as the expansion of the agricultural and livestock frontier, illegal logging, poaching and illegal fishing, and disorganized tourism development. The opening of roads has been worsened by
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the lack of staff in the area, which leaves 80% to 85% of the area without any state control, especially in easily accessible areas (Parkswatch, 2004). Many of these problems are related to the legal insecurity of land tenure, the lack of planning for the use of space and natural resources, the alteration of traditional management practices, and the intensive and disorderly extraction of natural resources. Mining also affects the area due to the use of mercury produced mainly by cooperatives in mining concessions legally granted by the State and by artisanal miners outside the concessions (Salinas, 2007).
Local indigenous peoples The area where the PNANMI is located has traditionally been occupied by ethnic groups belonging to the Takana linguistic family (Takana, Ese Eja, Araona, Toromona, Reyesano) which have been linked to the western region of Beni (Salinas, 2007). It is currently surrounded by indigenous territories and faces indigenous land title claims (TCO Takana I to the east, TCO Takana II to the north, and demands for the declaration of the Lecos Apolo and Lecos Larecaja TCOs to the south) (Parkswatch, 2004), which partially or totally overlap the protected area.5 In the case of the Takana people, as a result of their need to protect their territory from settler colonization and forest concessions, the Takana People’s Indigenous Council (CIPTA) was created in 1992. It currently represents 30 Takana communities in the Province of Iturralde de La Paz. Two of its objectives for the management of the territory are: to design policies and strategies for the management, use and control of natural resources with the participation of the Takana indigenous communities; to achieve the demarcation and consolidation of their communal lands and territories in order to ensure the autonomy of the Takana indigenous communities (CIPTA, 2007:13). CIPTA has tried to strengthen its traditional decision‐making mechanisms and structures. For this purpose it has established several levels of decision‐making, including the Great Assembly, the Consultative Assemblies, and, in cases of emergency, the ‘Corregidores’ (District Administrators) Council. The organization has also established a technical body to channel investments into actions for the improvement of production, biodiversity management, and increased purchasing power and/or savings for the families in the communities (CIPTA, 2007:15). Also, with the aim of strengthening the participation of women in the Takana communities, the Takana Women’s Indigenous Council, which has a Women’s Assembly, was founded in 1996. In 2000, CIPTA began planning for TCO Takana I through a process that culminated in the development of the Sustainable Development Strategy – addressing issues of economy and quality of life, natural resource conservation and management, the equitable sharing of benefits, political autonomy, self‐management of development, and efficient administration – and in the preliminary zoning of the area. This experience led to the development of a new methodology to establish the surface area of the TCO and zone the use of land and resources (Salinas, 2007). The Sustainable Development Strategy was developed for the purpose of formalizing the development aspirations of the Takana people. It represents a model of strategic spatial 5
In 1997, the CIPTA presented a claim to INRA as a TCO, regularizing land title to an area of 769,890 has in 2000. 188,580 hectares, located mostly in the PNANMI, are still pending. These claims were made by Takana I. A second claim presented by Takana II in 2001, for 454,469,220 ha, is still in the process of regularization. 17
planning at the TCO level and contributes conceptually to the management of territorial spaces from a cultural perspective with a view to complementing (not competing with) municipal and departmental jurisdictions. This process made it possible to define the areas of natural resource use and historical‐cultural importance, and this has contributed to the resolution of conflicts with other sectors (CIPTA, 2007:29). With the support of international cooperation, the Takana are implementing a process of strengthening relations between the TCO communities and the San Buenaventura and Ixiamas municipalities. They are also training community representatives – mainly presidents of grassroots territorial organizations – to enable them to participate effectively in the control and oversight of municipal administration. As a result of this process, the Takana communities have significantly improved their participation in municipal planning processes and have managed to incorporate their demands into municipal operational plans (CIPTA, 2007).
Indigenous participation in protected area management The PNANMI is under a system of direct administration by the governing body or national authority, the SERNAP in this case (WCS, 2007:20). Since its beginnings, the park has functioned with a management committee6, created in 1996 and composed of indigenous organizations such as CIPTA and others including PILCOL (Lecos Indigenous Peoples and Native Communities of Larecaja), peasant communities, subprefectures and municipalities, civic committees and the Regional Chamber of Tourism. This committee has allowed for a certain level of local participation, which many other areas without such a mechanism do not have. However, this participation has suffered for a long time from the absence of a management plan outlining objectives and a long‐term conservation strategy (Parkswatch, 2004). Reorganized in 2002 to achieve a better representation of the stakeholder community, the Management Committee has regular meetings, maintains a permanent communication with the park director, and organizes training workshops for its members (Parkswatch, 2004). The problems faced by the management committee arise from the relationship between the actors, rights, jurisprudence, and interests greater than those of the State and the indigenous peoples. The complex territorial structure of protected areas and indigenous territories also includes municipalities, departments, provinces, and mining, forestry and petroleum exploration concessions. Within the framework of the Management Plan, a Tourism Programme was developed to control and guide the development of the local tourism offer and the raising of funds to improve the management capacity of the Madidi National Park and, in particular, to strengthen the control capacity of the park rangers. These funds come from the implementation of a fee collection system that finances 91% of the area’s fixed costs. The allocation of funds raised is determined by the management committee according to the needs, objectives and processes established for the development of the protected area. To achieve its vision of equitable development, the tourism programme includes the participation of the local population through coordination with the municipalities, TCOs, and community‐based and private businesses, both local and external. 6
The entity known as the management committee was modified by D.S 25954, of October 20, 2000, which changed the name ‘management committee’ to ‘Board of Administration’. 50% of the members of these boards will be local representatives of peasants, indigenous peoples and settlers, and the other 50% will come from the municipal government within whose jurisdiction the protected area is located, and from the Prefecture and the SERNAP, with no participation by private institutions (WCS, 2007). 18
Bahuaja‐Sonene National Park The Bahuaja‐Sonene National Park was created in 1996 out of the Pampas del Heath National Sanctuary and part of the Tambopata‐Candamo Reserved Zone (Parkswatch, 2004). The Tambopata National Reserve, adjacent to the park, was also created in 1996 as a result of the declaration of the park area. The creation of Bahuaja‐Sonene was problematic since approximately 50% of its area overlapped petroleum lot 78 (Chirif and García, 2007). Throughout the planning process for the declaration of the area, local actors were involved in the design, implementation, evaluation and reorientation of activities within a land‐use planning framework. In 2000, the consortium led by Mobil abandoned the petroleum lot because insufficient reserves were found to justify its operation. Later, in September of that year, the Bahuaja‐Sonene National Park was consolidated and expanded to 1,091,416 ha and the Tambopata National Reserve was declared (Parkswatch, 2004). The key threats to the protected area are: possible hydrocarbon exploitation, dam construction, agriculture and squatting, gold mining, illegal timber harvesting, the excessive extraction of other natural resources (wild meat, fish, fruits and palm leaves, among others), and increased migration to the region (Parkswatch, 2004). In 2007, the Peruvian executive branch prepared a draft law aimed at modifying the extension of the Bahuaja‐Sonene National Park by cutting back around 200,000 hectares for use in oil exploration and exploitation. Due to local and national opposition, oil activities in the area have been suspended; however, as long as there are initiatives that promote natural resource extraction, the threat to the area will remain latent. In June 2008, a temporary concession was granted to the Amazonas Sur Electric Power Company, made up of the OAS and Furnas del Brasil companies, to conduct studies related to electric power generation activities at the future hydroelectric power plant of Inambari, located across the regions of Puno, Cusco and Madre de Dios. The Inambari project would not directly affect the park but would have an impact on its area of influence. According to the director of the Bahuaja‐Sonene National Park7, the danger of the area of influence being affected has lessened since the concession holder lowered the height of the dam reservoir. However, the threats of colonization and the entrance of illegal artisanal miners due to the construction of the interoceanic highway in the area are still present. The colonization and deforestation problems in this area of the park – the latter caused by the expansion of the agricultural frontier in the area adjacent to Madidi – may be accompanied by the increased production of illicit coca crops. Roads for the extraction of selected species and poorly managed timber concessions have always been the main ways in which migrant farmers and settlers have gained access to forest lands. Logging roads open up areas of tropical forest that were previously inaccessible to migrant farmers. In the buffer zone in the southern section of the national park, intense logging is being carried out that opens up more forest trails, which are then used by migrant farmers to enter and settle the area (Parkswatch, 2004).
7
Ricardo Woolcott, personal communication, 11‐1‐2009. 19
Local indigenous peoples There are no official records of human settlement within the boundaries of the National Park (Chirif and García, 2007); however, the territories of the Ese Eja indigenous communities adjacent to the park are home to an approximate population of 640 people (Biffi, 2006), grouped in the communities of Infierno, Palma Real, Sonene and Kotsimba. The Ese Eja are a small lowland indigenous Amazonian society, currently numbering less than 3,000, and living in the border region between Peru and Bolivia. The Ese Eja society has become increasingly fragmented and disjointed, especially after the development of an agro‐extractive economy in the region in the late nineteenth century. The concatenation of downriver migration, spatial dislocation, fragmentation, increased sedentarization, and a growing dependency on market‐based activities, has led to the transformation of social, political and ecological relations8. In the 1970s, when a series of agrarian and social reform measures were taken through the Law of Native Communities, the Ese Eja took steps to obtain legal status as a “native community” in order to gain title to their territories. The Ese Eja have partly retained their traditional use of forest resources. Originally nomadic, this people lived in settlements along the rivers of the Amazon. As they now live in permanent settlements, they need to raise animals for their subsistence. This activity has led to the deforestation of swaths of tropical forests. In addition to practicing subsistence agriculture, the Ese Eja collect and sell brazil nuts (Bertholletia excelsa) and manage lodges and conservation centres in the area. The Ese Eja are now going through a phase of urbanization that coincides with the emergence of an environmental service economy in the region (Peluso and Alexiades, 2005). This new phase privileges certain forms or representations of indigenous knowledge, organization and control through interventions such as ecotourism, conservation, and sustainable development projects that contribute to integrating indigenous peoples into the market economy, but exacerbate the process of urbanization. For indigenous peoples to work, own and run ecotourism lodges, they must reorganize their livelihoods, often putting subsistence agriculture, hunting, animal grazing, forestry and extractive activities in the background. Wage labour as guides, waiters or cleaners takes them out of their homes and into the lodges, causing a change in family and social dynamics. Another clear effect of the boom in the environmental service economy has been the loss of language. While most Ese Eja are bilingual, they now speak Spanish more frequently, and many children are only marginally bilingual (Peluso and Alexiades, 2005).
Indigenous participation in protected area management In Peru, the participation of local communities and stakeholders is channelled through protected area management committees. This participatory mechanism was established through Law No. 26834 and its regulations (1997 and 2001, respectively). According to this law, the members of the management committee may include representatives of regional and local governments, sectoral authorities, local populations, different legally recognized users, universities and academic institutions, organizations and private businesses, and, in general, all sectors related to the development of the area (SINANPE, 2007). 8
Taken from http://www.kent.ac.uk/sac/department/staff/alexiades/research.html. 20
At present, the Ese Eja communities of Palma Real, Infierno and Kotsimba have a direct relationship to the management of the Bahuaja‐Sonene National Park and the Tambopata Reserve through the management committee for both areas (Parkswatch, 2004). According to the director of the Bahuaja‐Sonene Park, the participation of Ese Eja communities in the management committee’s assembly reflects the solid relationship they have with institutions such as NGOs and private companies seeking to become strategically involved based on their interests and those of the protected area. This contrasts with the more sporadic and not very proactive participation of migrant organizations in the Andes. Conservation or tourism initiatives contribute greatly to the involvement of the Ese Eja in the management committee by building their capacities. The administration of the protected area using the proposed “Ecotourism Standards” has resulted in the establishment of regulations for all tourism operators working in the area and in behavioural guidelines for visitors (Parkswatch, 2004).
Conclusions Despite the importance that both protected areas and indigenous territories have for conservation, little has been documented regarding the progress made and the challenges and difficulties facing governance in conditions of overlap. In particular, there is a lack of information on issues related to the forms of organization, authority structures, customary law and decision‐making of indigenous peoples in territories that overlap with protected areas. It should be added that the data generated does not always provide detailed information on the specific conditions of the different protected areas, and their management is not always aligned with the legal frameworks. The experience of the TCO Takana I has shown that the governance conditions in this overlapped area are largely determined by factors external to the protected area and indigenous territory and related to economic and socio‐political dynamics at a provincial and national level. Therefore, a more complete study is needed to expand the scope of information on governance, stakeholders, historical background, and perceptions of the capacity for indigenous peoples to exercise their rights in protected areas. The recognition of collective rights in Bolivia has enabled and encouraged progress on the definition of models of territorial management aimed at the shared governance of protected areas. This in turn has made it possible to establish common management objectives for these areas and indigenous territories. However, the case study shows that it should not necessarily be assumed that indigenous peoples are applying customary law in their territories. Some indigenous peoples still need to develop norms to regulate the use and exploitation of natural resources in the changing situations their territories are undergoing. Existing secondary information reveals that the Takana people are involved in the process of shaping the new form of the TCOs, which, according to the current Constitution, will be established as TIOCs (Indigenous Native Peasant Territories). The Takana have restructured their organization around the protection of their territory from third parties and the strengthening of their traditional decision‐making mechanisms. However, it is necessary to delver deeper into how the Takana people’s decision‐making and customary law affect their relationship with the area headquarters. 21
Unlike the case of Madidi, in the Bahuaja‐Sonene National Park, the Ese Eja people are marginally involved in the management of the protected area because they live adjacent to it. Their participation in the management of the Park through the management committee is aimed primarily at their interest in tourism activities in the area. These activities have encouraged the maintenance or recovery of cultural practices that are shared with visitors as a tourism product. In general, the ancestral components found in Bahuaja‐Sonene are different from those in Madidi. By responding more to market interests than to the need to develop long‐term territorial policy projects in cooperation with other stakeholders in entities such as the management committees, the participation of indigenous peoples in ecotourism activities plays a comparatively less important role before the State and in the administration of the area.
Recommendations regarding the case studies9 The analysis of the two selected protected areas in Bolivia and Peru established that the influence indigenous governance has on their management is linked to two very different national dynamics. However, there are similarities between the management of these protected areas and the exercise of indigenous peoples’ rights in cases of total or partial overlap. As the starting point to achieve relatively harmonious relations between protected areas and indigenous territories, institutionalized procedures must exist for land regularization and titling. Although these procedures may have limitations, their existence distinguishes the countries studied from the rest of the countries in the region. Although the cases examined are different, the participation of native peoples in the determination of areas recognized as indigenous territories – whether or not there are settlements in them – lends legitimacy to the presence of protected areas and the need to use them in ways that are compatible with conservation. These regularization processes have resulted in the State and indigenous peoples developing longer‐term relations despite strong intervention by third parties such as NGOs and international development. The procedures established in Bolivia have provided a basis for titled lands to exist within protected areas, making it possible for areas to have a double status as both a protected area and a TCO. However, the case of TCO Takana I shows that regularization processes are not always integrated or based on the boundaries proposed by the peoples themselves; in this case they resulted in the fragmentation of the Takana territory. Despite the progress that the Takana have made in zoning and coordination with the administration of Madidi National Park, the lack of a continuous territorial zone may become a threat to their consolidation and autonomy as a people. Regardless of what operational difficulties may arise in the regularization and titling process, it is critical to keep indigenous lands whole; therefore, the government and institutions with authority in this area should make every effort to prevent the fragmentation of indigenous territories. In addition, attention should be given to developing and implementing participatory processes for the recognition of indigenous territories in protected areas. These should be adequately supported and grounded in the historical, social and anthropological context. Indigenous participation should be considered essential for the development of national 9
These sections include contributions from the “Workshop on Recommendations for the Management of Protected Areas and Indigenous Territories” (November 2009, Mindo, Ecuador). Agreement was reached on recommendations to help stakeholders participating in conservation initiatives manage the problems they encounter in overlapping areas. 22
legislation and the management of protected areas in South America in order to ensure that clear rules are established for interaction between indigenous peoples and systems of protected areas. This interaction should balance interests and management visions and allow the exercise of collective rights while promoting the sharing of responsibilities for biodiversity conservation and management. Based on the information gathered in the case studies, it has not been possible to determine the degree of influence customary law has on the management of protected areas. However, the actors involved in the evaluation of the case studies have identified the need for indigenous peoples to systematize information about their customary law, and specifically about their regulations on the access, management and control of natural resources, with the aim of finding a balance between their cosmovision and the conservation objectives of the area. This would consolidate the organizational processes of territorial management and self government while increasing the local authorities’ and other stakeholders’ knowledge and understanding of them. In the case of Bolivia, for example, this measure could put into action environmental policies based on customary law and grounded in the multinational framework established in the Political Constitution. The case of Peru is less clear in this respect; however, as a foundation for the interaction of indigenous peoples in areas where protected areas overlap with their territories, the native communities clearly need to recover, value and systematize their own traditional norms related to natural resources in order to better position themselves in their dialogue with environmental authorities, government institutions, and other stakeholders. Obviously, customary law needs to be adapted to current conditions and to the challenges and problems facing both native community territories and protected areas. Likewise, the case of the TCO Takana I in Bolivia shows the importance of indigenous peoples’ defining internal or traditional norms and strengthening their traditional decision‐ making mechanisms as input for the development of land‐use planning tools for protected areas. The management of the Bahuaja‐Sonene National Park could probably benefit from a process of incorporating similar management instruments into the practices applied there, especially considering that the developmentalist agendas created by local governments in this area continue to be a constraint to the balancing of interests and implementation of more coordinated actions in such bodies as the management committees. While the management committees are an important mechanism for the participation of indigenous peoples, their composition and functioning are not sufficient for the exercise of indigenous governance. Likewise, although they are a space for interaction between different stakeholders and interest groups, as things currently stand, more powerful stakeholders without territorial rights can have the same level of representation in decision‐ making as indigenous peoples with territorial rights. This characteristic of the management committees can cause harm to indigenous peoples, weaken their decision‐making, and discourage them from participating in the management committees. This is important in the case of Peru since its legislation recognizes the presence of ‘stakeholders with interests’ in protected areas. Although the advantages of their participating in management committees with a relatively open and pluralistic membership have been researched in Peru (see Monteferri, 2006), little is yet known about the effective opportunities that these spaces generate for indigenous peoples to exercise their legally recognized rights. As the exercise of rights is always conditioned by some kind of negotiation with other stakeholders, it is necessary for each country to find suitable and
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feasible participation mechanisms and spaces through which indigenous peoples can position their interests and reach long‐term agreements for the management of protected areas. Another recommendation related to the case studies concerns the need for greater strengthening of capacities for participation, decision‐making and self‐government by the indigenous peoples whose territories overlap with protected areas in the region. For example, since the strengthening of CIPTA has reached a relatively high level, it is recommended that strengthening activities aimed at increasing its involvement with local governments related to the protected area be made a long‐term priority. Consideration should be given to the impact of local government development plans on protected areas and their buffer zones and on the dynamics of the indigenous peoples’ management of their territories and natural resources. Therefore, the comprehensive land‐use planning framework must go beyond the boundaries of the overlap between a protected area and an indigenous territory and foster more horizontal relationships to balance existing power dynamics and define both responsibilities and equitable benefits.
4. RECOMMENDATIONS FOR THE REGION Most of the constraints to indigenous governance are imposed by structural conditions that should be properly discussed and modified through broad social agreements. The non‐ recognition of rights in certain countries, their policies on extraction or settlement, and the limited control of illegal extraction activities are some of these constraints to indigenous governance. And although in the last few years spaces such as management committees and co‐management mechanisms have been created, the following challenges must be faced in order to make support for indigenous governance an important component of public policy: • States must internalize a focus on rights in the management of protected areas and land‐use planning. Although the laws partially recognize indigenous peoples as subjects of collective rights on a Constitutional level, the design and implementation of secondary laws and public policies is still quite uneven in the region. Likewise, the definition and application of public policies with a focus on rights, if properly regulated and financed, could enable greater coherence between national and local development plans and identity‐based life plans or development strategies. • In addition, there is a need to develop land‐use planning that integrates indigenous territories and goes beyond the purely economic rationality underpinning all levels of State development in order to ensure that indigenous people are able to exercise their right to self‐determination, which is recognized by most of the countries in the region. This approach may help to reduce conflicts over use and access to natural resources, particularly those caused by production or extraction policies that threaten the resource base on which indigenous peoples depend for their livelihoods, and which protected areas aim to protect. •
To implement appropriate land‐use planning, the different scales or levels of indigenous decision‐making must be recognized and supported, respecting their own time frames and processes, as well as their own institutionality. To improve the relationship between the State and indigenous peoples, mechanisms need to be established to make the recognition of their rights a cross‐cutting element of public policy. Finally, there must be coordination between the State and indigenous peoples and other stakeholders, such as local communities, the private sector, etc. 24
•
•
•
•
•
•
The level of stakeholder coordination in indigenous territories and protected areas should be based on the State’s recognition of indigenous self government. This recognition must be organically linked to national policies for social participation in the public administration of protected areas and to the general policy of co‐management or shared management that should shape the form of participation of the other stakeholders. Intercultural dialogue needs to be promoted, including the coordination and transfer of information among the different levels of planning: indigenous peoples’ life plans, protected area management plans, and the land‐use plans of the corresponding political administration jurisdictions of the State. This could establish a basis for coordinated monitoring and assessment of progress towards, and achievement of, plans to make adaptations or adjustments according to the changing conditions of stakeholder relations. For coordination among the development and conservation objectives of the State and indigenous peoples to occur, there needs to be a general change of perspective regarding the role played by protected areas, which should not be viewed only as a conservation tool. Therefore, it is necessary to move away from a vision exclusively focused on conservation towards one that values the contributions that protected areas make to well‐being and livelihood security, as well as their potential for adaptation to climate change and the reduction of the vulnerability of indigenous peoples to environmental impacts. Another condition has to do with the discrepancy between the development objectives of the State and indigenous peoples related to natural resources. To address this, it is essential, based on the internationally recognized rights framework, for States to use free, prior and informed consent as an instrument for more effective decision‐making and the development of agreements. This change of vision will also require that indigenous peoples develop or strengthen technical and political dialogue capacities so that they can position alternative approaches to natural resources management, more appropriate technologies for habitat conservation, and recommendations regarding the need for environmental sustainability and social equity criteria to be considered in the State’s development projects. With regard to stakeholder coordination, consideration should be given to the possible effects of the protected management committees being the only type of coordination body. In some cases, due to their advisory nature and the limitations they place on the exercise of indigenous governance, the management committees have not proven adequate to have an impact on the management of protected areas that overlap with indigenous territories. For the management of overlapping areas, the States need to form and train interdisciplinary teams for the land survey processes that are undertaken and to launch forms and mechanisms of long‐term co‐management. In addition, it is necessary for the States to develop and continually and systematically update social and cartographic information (baselines, mapping of stakeholder relationships) related to protected areas and indigenous territories. This will facilitate informed planning for the management of
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overlapping areas, taking into account the indigenous peoples’ possibilities to exercise their rights and influence the management of protected areas. •
In the process of generating information to better understand the situation of indigenous peoples and the management of overlapping protected areas, government or state institutions need to interact with the indigenous peoples in a coordinated manner. The information gathered should include issues related to: recognition of native peoples or traditional occupation, progress in titling processes, the status of land tenure, territorial management initiatives, forms of organization, and the status of customary law on natural resources.
•
In order to enrich instruments such as management plans, it is important for the communities and peoples, through their representative organizations, to build technical capacities for territorial management, zoning, and the generation of information on the management of traditional natural resources (for example, through socio‐cultural mapping).
•
It is also necessary to go beyond this study based on secondary information, which only gives an overview of the conditions of overlap and governance in protected areas, and to take steps towards the on‐site gathering of information to provide a more in‐depth picture of the existing dynamics, problems, stakeholder interaction, application of rights, and implementation of legal frameworks.
•
Finally, it is important to promote the exchange of experiences between protected area officials from the environmental institutions of the countries in the region and the indigenous leaders and technicians involved in the dynamics of territorial management in overlapping areas. Beyond formal prescriptions to improve the governance conditions of protected areas, or the formal rhetoric of respect for collective rights, these are the processes that should support indigenous governance in protected areas.
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