Peruvian legislation on protected areas is unusual in that it includes a category with the primary objective of benefiting local populations—the category of communal reserve. Both within Peru and internationally, communal reserves are attracting attention as an innovative tool for co-management of protected areas. At the international level, Peruvian communal reserves have been cited as a model for protected areas that is in line with policy recommendations by the 2003 World Conservation Union (IUCN) World Parks Congress for Community-Managed Protected Areas. Within Peru, proposals for communal reserves are multiplying: four of the six existing communal reserves have been created in the last three years, and at the time of writing, at least six more proposals were in preparation. Current communal reserves have attracted funds from the U.S. Agency for International Development, the U.N. Development Programme, DANIDA (the Danish government development agency), and the World Bank’s Global Environment Facility.
But as positive as it is that the category of communal reserve is attracting such interest, within Peru it is still an experimental category for which legislation is under development. Two distinct but related issues are as yet unresolved: first, a fundamental difference between conservation and indigenous perspectives of the purpose of communal reserves; and second, the development of a mechanism for management that meets the requirements of the Peruvian System of National Protected Areas while retaining flexibility and minimizing the bureaucratic and administrative burden on participating communities.
There are currently six communal reserves in Peru—five at the national level and one at the regional level. Each has been created in response to different agendas. Yanesha, Ashaninka, and Machiguenga were created as buffer zones to national parks, with varying levels of participation by local communities and indigenous organizations as well as organizations interested primarily in biodiversity conservation. El Sira and Amarakaeri were proposed purely in order to secure rights to indigenous territories. Tamshiyacu-Tahuayo was created—at the regional level—in response to local concerns about resource rights and conservation concerns related to the presence of an exceptionally diverse primate species.
Communal reserves were first legally defined in the Forest and Wildlife Law of 1974 "to enable local populations to conserve fauna." The 1977 Regulation on Wildlife Conservation gave more specific criteria; firstly that only Native communities could be the beneficiaries, and secondly that "there should be no centers of population within the reserves or any forestry or agricultural work." Thus, communal reserves represented a compromise for indigenous groups: they offered a legal framework to secure subsistence rights to resources over large areas, but commercial use and settlement were prohibited, and ownership remained with the state. According to a document titled Liberation Through Land Rights in the Peruvian Amazon published by the International Working Group for Indigenous Affairs, reserve lands were "state lands which are handed in trust to the indigenous peoples in perpetuity to manage and administer in the interests of their own and nature conservation." The form and level of management of such communal reserves, under the 1970s legislation, was left in the hands of indigenous communities.
The reserves were seen as a means to complement the smaller land areas usually granted in the process of titling Native communities. This perspective was most clearly implemented in El Sira Communal Reserve, which was created as part of a much broader land titling process that created a patchwork of community titles which were then connected by communal reserves in order to secure large areas of land as unbroken stretches of indigenous territory.
National Legislation
From the 1990s, as part of an intensive period of revision of laws relating to land and resource rights in the Peruvian Amazon, Peru began to build a distinct body of legislation to consolidate a national system of protected areas. The legislative framework rests on three major pieces of legislation: the Protected Areas Law of 1997, the Directorial Plan for Protected Areas of 1999, and the Regulation for the Protected Areas Law of 2001. The national system of protected areas is directed by the Protected Areas Office in the Institute of Natural Resources (INRENA), which is part of the Ministry of Agriculture. Communal reserves were incorporated into the new protected areas legislation as a distinct category, defined in the Law of Protected Areas as: “Areas destined for wildlife conservation for the benefit of neighboring rural populations. The use and commercialization of resources will be carried out according to management plans, approved and supervised by the authority, and directed by the beneficiaries themselves.” The new definition represented two important changes. First, communal reserves were no longer restricted to indigenous populations.1 Second, resources were to be documented according to formal management plans, which although directed by the beneficiaries were to be approved and supervised by government authorities. Thus, the change represented an increase in state intervention in communal reserves and a decrease in local autonomy.
The regulation of 2001 of the new legislation provides a common legislative and administrative framework for all categories of protected areas in Peru. It involves the establishment of management committees, the appointment of heads of protected areas with a contingent of park guards, and preparation of a series of management and planning documents according to a specific set of guidelines. But in recognition of the fact that communal reserves are fundamentally distinct from other categories of protected areas, in that primary responsibility for management lies not with the government but with the communities concerned, the regulation stipulated that a Special Regime would be developed for communal reserves. Two years later the details of the Special Regime are still under intense negotiation in a consultation process that has highlighted both the widespread interest in communal reserves as innovative and valuable, and the challenges that remain in order to make them workable.
Two particular challenges have arisen—one conceptual and one practical. First, a fundamental difference remains between indigenous and state perceptions of the category of communal reserve. Second, there is still debate about the form a suitable institutional structure for management would take.
For the Ashaninka, Asheninka, Yanesha, Nomatsiguenga, Machiguenga, Harakmbut, and Yine peoples, as well as the Cocama-Cocamilla and Riverine descendents of Mestizos in the Tamshiyacu-Tahuayo Reserve, the category of communal reserve remains a tool that complements individual community land titles, offering legal protection against invaders such as loggers, colonists, and gold-miners. From this perspective, government support for defense from outside pressure is vital, but there is no role for government in internal management.
On the other hand, from the perspective of the Protected Areas Office, a communal reserve is first and foremost a conservation area and part of the Peruvian natural heritage.
As such, it is essential that it should be monitored to ensure that all use—both external and internal—is compatible with biodiversity conservation. This government view emphasizes the link between rights and responsibilities of participating communities, who are held accountable for maintaining a conservation area in which biodiversity is indeed practiced. Thus, local communities must demonstrate that their own use is compatible with biodiversity conservation through formal documentation and implementation of management plans, while the state retains a supervisory role. The result is a tension in which INRENA sees indigenous organizations and allies as failing to recognize the need for community accountability, and indigenous organizations and allies perceive INRENA as constantly interfering rather than allowing communities the space to manage their reserves themselves.
The law is ambiguous on the extent of autonomy of local communities. The Law of Protected Areas recognizes traditional uses and lifestyles and the self-determination of Native and “peasant” communities, but only “as far as such uses are compatible with the aims of [the protected areas].” The Regulation of the Law explicitly recognizes ILO Convention 169 on Indigenous and Tribal Peoples, according to which indigenous peoples have the right to “decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development”; but again, there remains in the general resolutions of the regulation a qualifying statement that use should be “in harmony with the objectives for which the Protected Areas were created.”
Such qualifying statements are incompatible with ILO Convention 169. Unlike other categories of protected areas, communal reserves are not (or should not be) imposed on indigenous communities, but created at the request of the communities themselves. One major challenge for current negotiations on the Special Regime is to come to some resolution of these different perspectives.
In practice, however, the lack of state support for protection from outsiders is also a source of concern to participating communities. In the Amarakaeri Communal Reserve, the Harakmbut and the supporting Federation for Indigenous Communities of Madre de Dios have been drawn into pitched battle with invading gold miners and are calling repeatedly on the government to fulfil its responsibility to enforce the law.2 In El Sira and Yanesha communal reserves, indigenous peoples are permanently attempting to block intrusion along the flanks of their reserves, but it is difficult, given the size of these reserves, the limited authority given to local peoples to enforce sanctions, and the limited presence and resources of INRENA personnel. In the newly created Ashaninka Communal Reserve, one of the main demands is that the Protected Areas Authority must start to act against illegal logging and road building.
The protected areas department has a ridiculously small national budget and is dependent on other sources of income—principally from tourism, and from international aid. When a new communal reserve is established, there is no immediate source of funds to provide a staff for enforcement. But to mount a project that merits international aid, a more extensive program would need to be developed. Thus, there is a structural problem for providing the right kind of assistance for communal reserves—either there is no realistic support from the protected areas authority or, if a project is developed, there is likely to be a level of presence that may swamp local participating communities. Thus, many indigenous organizations feel caught between the need for support from the state, and the political struggle to retain autonomy.
Ironically, the communal reserve that comes closest to the Protected Areas Office`s concept of rights and responsibilities of local communities is Tamshiyacu-Tahuayo, which was created by regional rather than national decree, and thus falls outside the National System of Protected Areas and its specific legislative and administrative regime.
Tamshiyacu-Tahuayo was created through a collaboration of local communities concerned about overexploitation of resources by commercial fishermen, loggers, and hunters from Iquitos, and biological researchers. They were also concerned for the conservation of biodiversity and particularly of primates in the area, which include the rare red uakari. There is an understanding among participating communities that they have been granted exclusive rights on the basis that they take responsibility for management, and in the 12 years since the creation of the reserve, they have been left to do so with no defined bureaucratic requirements. They have developed their own system of control, with backup from the local police when necessary. Even spokespeople working within the National Protected Areas system recognize that the success of Tamshiyacu-Tahuayo may be because of, not in spite of, the lack of a bureaucratic regime.
Determining Management
A legislative regime must be developed that satisfies government requirements for formalization of reserve management and is accessible enough that it is within the reaches of the indigenous communities who should be responsible for management. The danger is that an over-technical or bureaucratic system would disempower communities before reserve management got started, thus condemning the system to failure from the beginning. Clearly, the level of formal management required is related to the political tension revolving around the perceived level of autonomy of indigenous peoples responsible for the reserves.
The standard institutional structure specified in the Regulation for the Law on Protected Areas includes a state-appointed Head of the Protected Area; a multi-stakeholder management committee with an executive board; an executor of the contract for administration for the area; and specific stipulations for a five-year master plan, one-year operational plans, and separate management plans for each type of resource use. This format is the point of departure for discussion of a Special Regime for Communal Reserves, but it is widely recognized that this structure must be radically altered. Many progressive ideas are mentioned in the existing legislation on protected areas. The Directorial Plan mentions the need to involve traditional knowledge, local customs, and systems of land tenure and production; the potential for recognition of traditional methods in the development of alternative wildlife management plans; and widespread recognition of the ancestral rights of indigenous, especially isolated, peoples, although always with a limit to their autonomy. But it is as yet unclear how these ideas can fit into a formal management structure that will satisfy the needs of the different interest groups.
In response to the need to define a management regime for the existing communal reserves in Peru, in September 2003, the Peruvian government passed a Transitory Regime by which the state assumes full responsibility for management of communal reserves until the Special Regime is finalized and legislation is passed for its approval. There is strong concern among indigenous lobbyists and their allies that, should current differences of opinion prove irreconcilable, the Transitory Regime will remain in place for many years to come.
Making Effective Progress
Many threats have led to the establishment of each existing communal reserve. In all cases, the initial threats came from destructive exploitation or immigration by outsiders. In all cases except possibly El Sira, where indigenous organizations are quite strong, incursions by outsiders remain the main threat.
The major concern of conservation and indigenous groups remains the need to confront these much larger threats. This reflects the wider situation in the Peruvian Amazon, which is undergoing immense pressure for extraction of timber, oil, gas, and gold resources. Parallel to the legislation on Protected Areas and Communal Reserves in Peru, a group of legal instruments has been passed in the Peruvian Congress encouraging large-scale investment for the use of natural resources. In most parts of the Peruvian Amazon there are strong interests in favor of short-term profit maximization through uncontrolled extraction of timber and wildlife. This is a far greater threat to both indigenous peoples and biodiversity than the political differences between indigenous peoples and the government.
The future and broader impact of communal reserves in Peru, in their true spirit of recognition of local, indigenous participation in conservation efforts and benefits, therefore depends on the interplay of three sectors: indigenous peoples and advocates, conservationists, and current pressure for uncontrolled natural resource extraction. The greater threat from the latter gives greater urgency to the negotiations between conservationists and indigenous peoples, and will determine the final progress communal reserves are able to make.
Legislation on communal reserves to date places management responsibility on paper firmly on the shoulders of beneficiary communities, while also recognizing the importance of state support for enforcement and supervision. The special regime under development must maintain a clear distinction between these different roles, giving a realistic space to communities to manage their reserves themselves, while also providing mechanisms for adequate state support and supervision. With these provisions, the regime will lead the way in progressive approaches to community-managed protected areas.
1. This is even more specific in the related Reglamento de Ley de ANPs, which defines Communal Reserves as “for the benefit of local populations and peasant and native communities.” The peasant communities in most areas of the Amazon are unlike those found in the highlands, as they are generally a mix of descendants from indigenous groups and outsiders who have intermarried over long periods of time and adopted many of the subsistence practices of indigenous groups.
2. Various international and Peruvian indigenous advocacy electronic bulletins present numerous cases of such conflict over time.
Helen Newing is a lecturer in conservation social science at the University of Kent, United Kingdom, and holds a doctorate in ecology. She has been working on community conservation and natural resource management issues in Latin America and West Africa since 1985. Lissie Wahl is a freelance Peruvian anthropologist with 30 years’ professional experience in indigenous rights and development issues.
References and further reading
Gray, A. (1998). Demarcating development: titling of indigenous territories in Peru. In Liberation through land rights in the Peruvian Amazon. IWGIA Document 90. Garcìa-Hierro, P., Hvalkof, S. & Gray, A., Eds. Copenhagen: IWGIA. P 174.
Newing, H., & Bodmer, R. (To be published). Collaborative wildlife management and adaptation to change: The Tamshiyacu Tahuayo Comunal Reserve, Peru. Journal of Nomadic Peoples.
