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

that they will be able to uphold their ownership. As Roque Roldan points out, the ambiguities in
the Peruvian legislation “represent a serious problem for communities in the exercise and defense
of their rights, and even for the authorities who should address these requirements.” 104
With respect to climate change, Peru has ratified and incorporated both the UNFCCC and
the Kyoto Protocol (KP), and politically promotes the implementation of CDM projects in their
territory. However, there is no legislation which regulates the generation and commercialization
of carbon credits, except a few provisions in the forestry legislation which identify carbon
sequestration as a type of ecosystem service from the forests. However, the implications of
carbon credit generation and commercialization by private or community entities are not defined
anywhere in the law, much less specifications for carrying out these activities in territories with
tenure regulations that differ from those of indigenous territories in Peru.
Regarding the Territorial Rights and the Forest Resources therein
Since the 1993 Political Constitution, indigenous territories ceased to be inalienable,
conserving only the imprescriptible character defined by the previous legal regime, which
guaranteed their inalienability, unseizability, and imprescriptibility from 1930 until 1993.
This means that the possession of the titles to territories of so-called native and agricultural
communities do not have any guarantee of permanency held by indigenous communities which
recognize their ownership and that the land can be sold or expropriated in ordinary processes
executed in real security as any other type of guaranteed patrimony.
The State recognizes the legal status of native communities and defines them as
communities which have their origin in the tribal groups of the Jungle and Jungle Border
Region. 105 Because of this, indigenous people from the Amazon region are identified by the
Peruvian legislation as a type of native community. 106 Subsequent to this legislation, the land
law of 1995 (law Nº 26.505), the vast majority of provisions approved in 1978 remain in force and
introduce a difference between coastal rural communities (10th article) and rural and native
104 ROLDAN, Roque. Manual para la Formación de Derechos Indigenas. Abya Yala Editions. Quito, Ecuador, 2004.
105 Article 7, Law Decree 22175 of May 9, 1978, known as “Law of Native Communities and Agrarian Development
in the Jungle and Jungle Border Regions.”
106 According to the law, these communities constitute a group of families linked by the following elements
“language or dialect, cultural and social characteristics, common and permanent tenancy and usufruct of the
same territory, with nucleated or dispersed settlement” Article 8, Law Decree 22175 of May 9, 1978.
Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t 57