By Nathália Clark / Translation: Patrícia Ribeiro de Carvalho
Serra do Divisor is an imponent mountainous complex which is divided between the state of Acre, in Brazil, and the Ucayaly and Loreto departments, in Peru. Because it is one of the regions of biggest biodiversity in the Amazon, in April 2006 it was declared a protected zone by the Government of Peru. The then Zona Reservada Sierra del Divisor, a transitory category of Área Natural Protegida (ANP) (Protected Natural Area), counted with 1.4 million hectares. After almost ten years and under a lot of pressure and mobilisation of national and international civil society, in November 2015 it was officialy categorized as a National Park, the category of ANP of most protection in the country’s environmental legislation.
According to the ANP’s Law of Peru (Law No 26834), being the Park an área of indirect use, it can not be inhabited. For this reason, certain areas where there were peasant and riverine communities were moved out during the categorization process. This fact led to the reduction of the area’s size, which now counts 1.3 million hectares. The newly categorized National Park Sierra del Divisor comprises endemic ecosystems and geomorphological formations that are home to over 3000 species of plants, 570 species of birds, 300 types of fish, more than a hundred reptiles and amphibians, and dozens of mammals.
In addition, along with other ANPs and native communities of the Peruvian side, besides conservation unities and indigenous lands in the Brazilian side – being the closest one the Terra Indígena Vale do Javari, in the Amazonas state –, the park also constitute an international corridor of protected areas stretching across the Brazil-Peru border, being home to the largest concentration of isolated indigenous peoples in the world.
Pursuant to Peruvian law for indigenous peoples in isolation and initial contact (Law No 28736 ), 2006, the territories of these populations should be recognized as Reservas Indígenas (RI) – lands bounded by the State to these people and endowed of transient intangibility, that is, are intangible as long as they hold the “situation” of isolation and / or initial contact. There are three territories of isolated indigenous peoples which overlaps the National Park: the Reserva Territorial Isconahua and proposals of indigenous reserve Yavarí-Tapiche and Sierra del Divisor Occidental (or Capanahua).
Both proposals are currently in recognition phase, while Reserva Isconahua was recognized in 1998. Therefore, before the promulgation of the law for isolated indigenous peoples. For this reason, along with four other areas, it is still under the category of “Reserva Territorial” – territories for indigenous in isolation recognized before 2006 and whose protection has regional nature, and not national. According to the current precept, the territorial reserves will have to adapt to the legal procedure established from 2006, without prejudice to the protection already acquired. In the case of the others proposals, the need to move forward in the recognition process is urgent, in view of the absence of prior acts conferring protection to them.
The problem is that, despite having ongoing studies and favorable technical opinion issued by Viceministério da Interculturalidade (VMI), under the Ministry of Culture, and countersigned by the Multisectoral Commission for the Protection of Indigenous Peoples in Voluntary Isolation and Initial Contact – decision-making body composed of representatives of government and civil society, responsible for analyzing the territorial recognition proposals for these peoples in Peru –, the two proposals reservation were disregarded by the National Service of Protected Natural Areas by the State (Sernanp), an agency subordinate to the Directorate of Protected Areas of the Ministry of Environment on the categorization process. As a result, the Supreme Decree of the Park’s Creation ignores the existence of isolated groups in these areas, only safeguarding the rights of the isolated peoples from Isconahua reservation.
“It’s not so much a problem of normative scarceness but a matter of difficulty in implementing the precepts”, argues David González Rivera, social specialist of CEDIA (Centro para o Desenvolvimento do Indígena Amazônico), an organization contracted to the preparation of the previous studies of recognition of three proposals for indigenous reserve in the region – those both of which overlaps the area of the National Park Sierra del Divisor and the proposed Yavarí-Mirín reservation.
According to the manager of the unit, María Elena Díaz, the technical committee of categorization, installed in June 2006, only took into account what is officially recognized and granted. “We have initiated the categorization process with institutions that have involvement with the issue, state-owned enterprises, the very Ministry of Culture and, above all, representatives of indigenous organizations (both regional and national level). It was performed a prior consultation process with the local indigenous people, and we work the zoning taking into account all data inputs. The Reserva Indígena Isconahua, for example, would not be part of the park, it was included at the request of indigenous organizations. But we can not work with proposals. The theme of the isolated peoples is competency of the Ministry of Culture and not the Ministry of Environment. It is they who should decide how these issues will be addressed. We currently don’t have a formal document that tells us that these peoples exist and they displace in specific areas”, she argues.
For the indigenous, on the other hand, it was clearly put to the categorization committee that the condition to support the creation of the park by the represented indigenous organizations – Aidesep (Interethnic Association for the Development of the Peruvian Jungle) and Orpio (Regional Organization of Indigenous Peoples of the East) – was that “the Reserva Territorial Isconahua and the proposals RI Sierra del Divisor Occidental and Yavarí-Tapiche (also known as Tapiche, Blanco, Yaquerana District, Chobayacu y Afluentes) would be considered within the categorization proposal, wherever in the categorization law was expressed, in one or more articles, the full respect of individual and collective rights of relatives living in voluntary isolation” (excerpt taken from the Letter No 148 of Aidesep, sent to Sernanp on August 29, 2012).
Still, according to the document, in the case the exigence was not complied, the indigenous have proposed that the isolated peoples’ right should be determined in proceedings that had already been formally initiated by the State, and that this should be done before the categorization process.
According to David Freitas, technical advisor of Aidesep, the indigenous organizations participating in the committee supported the Park’s creation because of the delay in the recognition process of the two proposed indigenous reservations. “One of the ways to protect the isolated peoples there was to sustain the creation of the park, once this categorization would give more security and inviolability to the territories. However, our demands and positions have not been respected”, he accents.
Under the Binational Meeting Matsés which goes for its sixth edition this year – a Matsés peoples forum in Brazil and Peru, coordinated by the Organização Geral dos Mayuruna (OGM) and Comunidad Nativa Matsés (CNM), which has the support and advice of the Centro de Trabalho Indigenista (CTI) since 2009 – successive requests were prepared with respect to the recognition of the isolated peoples’ territories in the region, particularly of indigenous reserves Yavarí-Tapiche and Yavarí-Mirín.
Such requests, such as the Carta da CNM and OGM, the Carta dos Matsés e Orpio / Aidesep and the final letter of the Fourth Binational Matsés were presented to VMI and to the Multisectoral Commission on different occasions, but none of them was taken into account on the Park’s creation Decree.
“These serious omissions bring incertitude and legal insecurity to the process of prior recognition of isolated peoples who live there. In a concrete way, the isolated indigenous peoples who inhabit the proposed territorial jurisdictions of the Napo-Tigre, Yavarí-Mirín, Yavarí-Tapiche, Sierra del Divisor Occidental and Cashibo Cacataibo are doomed to disappear because of the delay and indolence of an insensible State, which postpones recognition and thus causes the rights of these people are not respected”
– David Freitas
In addition to overlap indigenous territories, the park’s area is also overlapped by two oil lots: 31-B and 135 with operating licenses granted, respectively, to the companies Maple Gas Corporation del Peru and Pacific Stratus Energy (now Pacific E&P). The latter also incurs the area proposed for the Indian Reservation Yavarí-Tapiche. There are also two other lots in the area close to the limits of the park: Lot 137, also of the Pacific E&P, which extensively overlaps the Comunidad Nativa Matsés, the proposed part for the Reserva Indígena Yavarí-Tapiche and part of the Reserva Nacional Matsés; and lot 95, currently conceded to a consortium formed by the companies Harken del Peru and Gran Tierra Energy, which overlaps the proposed Reserva Indígena Yavarí-Tapiche.
Pursuant to Peruvian law, “is not allowed the extraction of natural resources, as well as modifications and changes of the natural environment” (Article 21 of Law No 26834) in protected natural areas of indirect use, such as the Park. This, also, was the main argument presented by experts from Sernanp, and indigenous and indigenists organizations regarding the Park’s overlaping at the indigenous reservations proposals, since, in practice, the area affected by the Park would count with more protection than their own indigenous reserves, given that the law for isolated peoples contains loopholes for flexible the intangibility of these areas.
On the other hand, the ANPs’ Law also provides that rights acquired before the establishment of an ANP must be respected, since they are “in harmony with the objectives and purposes for which the area was established” (Article 5 of the same law), and the State must assess in each case the need to impose new restrictions on the exercise of these rights.
In the case of lot 135, the operating license agreement between the regulatory agency Perupetro and Pacific Stratus was firmed by Decreto Supremo N° 063-2007-EM (Supreme Decree No 063-2007-EM) on November 20th 2007. On that date, the area had been already defined as Reserved Zone and the categorization process was already underway. Nevertheless, as it had not yet been officially categorized for regulatory purposes the contract was considered a “right previously acquired.”
“The park is formed by mountainous ranges and what we seek is protect these spaces, on which should not be allowed the development of economic activities, i.e. that are not extracted resources from inside the area for commercial purposes. Therefore, I believe that there is nothing that counteracts the protection of the isolated populations. However, the Peruvian State has a contract with this company which means that it has a vested right. And as it notes the landmark of Natural Protected Areas, we have to ensure these rights”, emphasizes the park’s manager.
For the director of Indigenous Peoples in Isolation and Initial Contact Situation of VMI, Lorena Prieto points out that, in certain cases, there are alternatives to try to reverse this situation. “In Indigenous Reservations ideally there should not be oil batches. However, in areas where there previously acquired rights, the State must assess to what extent these activities may affect the people who live there. Peru already has legal procedures established to prepare prior technical opinions of binding character by the Ministry of Culture in order to safeguard the rights of isolated peoples and initial contact (PIACI, its acronym in Spanish)”, affirms Prieto.
The lot 135 comprises part of the river basins of the Tapiche (Ucayali’s tributary) and Jaquirana (Javari’s main confluent) rivers, in Brazil’s border region. Along with logging, drug trafficking and mining, oil exploration is considered by the indigenous one of the main threats to their traditional territories and the lives of peoples in isolation. Several oil spills have occurred in recent years in the Amazon region of Peru. In late February this year, the government declared a state of emergency in 16 communities because of leaks in the Loreto region. The disaster affected about 31,000 people, mostly indigenous.
For these and other reasons, the indigenous representatives argue that, in the presence of indications of isolated peoples within an ANP candidate area, should be provided precautionary measures on the categorization process. For example, the delimitation of their occupation zones as stricted protection areas, regardless the phase in which it is the recognition procedure of the isolated peoples and respective indigenous reserves in question.
In the case of overlapped reserves’ proposals by the National Park Sierra del Divisor not yet recognized, since the strict protection was not ensured in its categorization process, it is need to ensure this right in the zoning given by the Master Plan, the document that guides the Park’s management and administration, and whose first version is in its preparation phase – every five years is made a review of the Plan.
“We have to take into account in the Master Plan that there are uses and ancestral customs of other indigenous peoples in the area, which does not allow us to qualify the entire space as stricted protection”, ponders María Elena. According to her, the process of preparing the Plan should be completed in June this year. “This is a priority issue for the Directory of Protected Areas”, she added.
David Freitas, of Aidesep, is more incisive and defends that the indigenous organizations’ position that accompany the Plan’s preparation should not be flexible. “It must be assure that the areas of the proposals are also considered stricted protection zones. In addition to housing a wealth of flora and fauna, hydrocarbons and other natural resources, they are also inhabited by the most unprotected human beings who try to survive in a world of constant threats, propitiated by extractive activities generated by an uncontrollable urge to wealth accumulation.”
“We have a number of regulations but also many gravitating economic interests that incite not to fulfill them. Experience has shown that indigenous peoples have always managed their demands were met through the fight. No State gives something to indigenous selflessly. This makes us continue strengthening organizations at national, regional and local levels, as without pressure and struggle there is no future”, complements the technical advisor.
In the vestige of the isolated peoples
The proposals for indigenous reserve Yavarí-Trapiche and Sierra del Divisor Occidental were presented by Aidesep in early 2000. After a long period without any effective measure adopted for its recognition by the Peruvian State, from 2012 studies were initiated by VMI. According to David Rivera, one of those responsible for the prior studies presently in elaboration, their recognition process is now on the finalization phase.
He advances that were found much evidence in all areas. “These areas are historically transit areas of the isolates. Throughout the region there is enough evidence of movement between Peru and Brazil. There is a wide space of populations transit, a kind of migratory territorial corridor. We seek the recognition of these territories so that these peoples can continue moving freely”, emphasizes Rivera.
He also reinforces the importance of protected areas’ mosaics to contain the external pressures. “Of the threats in the region, logging is the most common to all areas. The area between the Serra do Divisor and Reserva Nacional Matsés acts as a barrier to the loggers who want to enter with tractor and all. In this sense, ANPs are being one more support. Evidences show us that they are serving as a refuge for the isolates, both by political neglect as by normative gaps”.
Even with all evidence, it is still a long way. Following the Viceministério’s rite, once finalized, the studies will be presented to the Multisectoral Commission which will determine whether the evidences presented are sufficient to sustain the existence of isolated peoples in the proposed areas. If positive, the Supreme Decree of Recognition will be produced and then will be sent to the Presidency of the Council of Ministers to be signed by the President of the Republic. The next step is to conduct further studies to categorize the areas as Indigenous Reservations.
It can serve as encouragement or just another element to require but the director of Isolated Indigenous Peoples of VMI ensured that from this year this recognition will not pass. “For many years, these requests are waiting to be attended. Performing this process effectively is priority for the Ministry of Culture in 2016”, affirmed Lorena Prieto.