a. Regulatory instruments which facilitate the provision of information to the public
The forest sector in Peru comprises the set of economic, social and environmental activities carried out by communities, non-governmental organisations, companies and the government, related to knowledge, conservation, administration, use and operation of the goods, services and values generated by forest ecosystems.
With this in mind, transparency in this sector is an important factor in ensuring that forest activity is dynamic, equitable and inclusive. However, the implementation of transparency in the forest sector is still insufficient, despite there being the regulatory conditions necessary for its fulfilment. Nonetheless, it is important to highlight changes made during this evaluation period that directly and indirectly influence transparency proceedings.
Our starting point is the general legal framework regarding the freedom of information provided for in the Law on Transparency and Access to Public Information (Law N° 27806), which underwent no change during this evaluation period. Despite it being compulsory, only some government bodies comply with all the provisions of this regulation, which is evidenced in the case of regional and local governments. The report presented by the People’s Ombudsman concludes that only two regional governments complied 100% with the provision of information as set out in the law, and the remaining regional governments had a degree of compliance of less than 50%. Local governments, meanwhile, had an average of 47%, which means that corrective measures need to be applied to ensure full compliance with the law.
In July 2011, the Peruvian Government, through Supreme Decree No. 066-2011-PCM, approved the Plan for Development of the Information Society in Peru, a document which is based on eight objectives, four of them directly associated with the right to information and transparency. These are: 1. Ensure the inclusive and participative access of the population in urban and rural areas to the information and knowledge society; 2. Integrate, expand and ensure the development of skills for the population to access and participate in the Information and Knowledge Society; 3. Guarantee improved opportunities for use and appropriation of the information and communication technologies which ensure social inclusion, access to social services which allow the full exercise of citizenship and human development in full compliance with the millennium challenges; (…); 7. Promote a high-quality public administration designed to serve the population; (…).
The same month also saw the promulgation of the new Forest and Wildlife Law (Law No. 29763), a norm which makes it specifically compulsory for the forest sector make information available to the public, which is regulated in Article II – General Principles of the Preliminary Title, heading 13, with regard to transparency and accountability, and articles 142, 143 and 144 provided for in Title IV “Transparency in forest and wildlife management” of Section Six of the aforementioned law. There is also the National Anti-Corruption Plan for the Forest and Wildlife Sector, approved by Supreme Decree 009-2011-AG, which states in its strategic objective that it is compulsory for civil servants to provide this information. It is worth highlighting that the new Forest Law contains for the first time a Title devoted to transparency in forest sector management, which is both compulsory and general in nature, and uses as support for improving the levels of transparency and fight against corruption the approval of the National Forest Anti-Corruption Plan. This is a long-term strategic planning document which implements the fight against corruption and strengthens transparency by public ethics and citizens’ oversight. These documents are both national in scope and compulsory for all the State institutions at all levels of government with regard to the specific responsibilities and functions of each institution.
With the publication of this new Forest Law and Anti-Corruption Plan, there are now specific provisions on transparency for the forest sector which, unlike the general norm (the Law on Transparency and Access to Public Information) identifies the obligation of the authorities associated with the forest sector not only to comply with the provisions of the general regulation for access to information, but also on specific questions; this includes access to technical documents, be they management plans, geographical maps, management reports, and so on.
Meanwhile, this new Forest Law creates a series of specialist bodies designed to improve management of forests and wildlife in Peru. One of these is SINAFOR (National System for Forest and Wildlife Management) which is a “functional system formed of ministries and public bodies and institutions at national, regional and local levels which exercise powers and functions in the management of forests and wildlife; of regional and local governments; and recognised forest management committees. SINAFOR integrates the policy, the regulations and the management instruments in functional and territorial terms; the public functions and relations coordinating the State institutions in all sectors and levels of government, the private sector and civil society, in matters related to management of forests and wildlife.” (art. 12 of Law No. 29763)
Another body created is the SERFOR (National Forest and Wildlife Service), which is the “national forest and wildlife authority” and “the governing body for the National System for Forest and Wildlife Management (SINAFOR) and is its technical-regulatory authority on a national level. It is responsible for issuing regulations and establishing the procedures related to its area of activity, coordinates the technical operation [of SINAFOR] and is responsible for its correct operation.” (art. 13 of Law No. 29763)
During these processes, DAR has provided ongoing impetus for respect for and compliance with the Law on Transparency and Access to Public Information, through the Special Learning Opportunities (SLOs) which, over the last three years, have been the benchmark for transparency in the forest sector. Through the SLO carried out by Amazónicos por la Amazonía “Support for the Regional Authority of San Martin – Regional Directorate for Natural Resources and Environmental Agricultural affairs for improving systematisation and access to information”, the capacities of the Environmental Regional Authority of San Martín have been supported and strengthened for the implementation of a transparency website on forest information. This is based on transparency criteria for public and non-public information, within the framework of the Law, and has resulted in a Regional Forest Authority with the tools necessary to continue to be a transparent region.
b. Forest Legislation (and its relationship with international treaties and traditional laws)
Although the new Forest Law and the National Forest Policy were set in motion at the same time in mid-2009, the latter has not evolved to a great extent. To date, there is a draft document of the third version of the National Forest and Wildlife Policy drawn up by the consultation team responsible for the process of revising and updating forest and wildlife legislation in Peru, which has still to be approved.
Nevertheless, the principal instruments for implementation of public forest sector policies in Peru are Law No. 27308 - Forest and Wildlife Law (still in force), and Law No. 29763 – the new Forest and Wildlife Law (which will come into force when there is a regulation to implement it). The latter is subject to other norms of a higher rank, such as the Political Constitution and the Organic Law on Sustainable Use of Natural Resources.
Furthermore, they must be articulated with policies linked to the sector, such as those considered in the General Law on the Environment, the Trade Promotion Agreement between Peru and the United States (which is a driving force for the Peruvian forest sector), the National Agreement and the National Environmental Policy; this also includes the National Strategy on Climate Change, the National Strategy on Biological Diversity, the National Strategy on Competitiveness, the Strategic National Plan for Tourism and the National Forests Programme.
Although Peruvian forest legislation is available, it is not codified (or concentrated) into a Forest Code; it is, however, systematised through a website, the forest legislation website of the Ministry of Agriculture’s General Directorate for Forests and Wildlife, which contains the legal regulations organised by topic, chronological order and region, as well as a link for the principal laws and regulations repealed. As far as the chronological order of the regulations is concerned, this is available from 2001 to 2011; this information has been useful and shows great progress in the process of systematisation. However, the uncertainty arises that this information has come into being as part of an agreement and that the state authority itself is not responsible for feedback for the information; this leads us to think that, once the agreement with the Peruvian Environmental Law Society has expired, the information might cease to be available to the public.
Meanwhile, Peru has signed and ratified a number of international treaties, with an undertaking to preserve the environment and natural and cultural heritage; it has also signed regional and bilateral agreements for the export and import of goods and services with tariff benefits. The Free Trade Agreement signed with the United States has been a driving force in the forest sector, which has promoted the process of updating forest legislation and the process of monitoring the legal origin of the extraction of forest and wildlife resources, which is now being implemented.
c. Legally recognised procedures for consultation and consent
It is important to point out that the new Forest and Wildlife Law incorporated as part of its general principles recognition of the customary and traditional laws of the indigenous peoples applicable to forest management; this will enter into force once there is a regulation to implement it.
Although it is true that the indigenous communities are governed by their own norms by virtue of their collective customary laws, traditions and self-determination, they have also opted for normalising their relations with instruments approved by their community, such as the case of the communal statutes. These statutes provide expressly for recognition of their collective rights; however, the special legislation linked to the forest sector also recognises these customary and traditional laws, in which they are recognised as having a preferential right to use the natural resources in their communal lands.
This law is also complemented with the recent approval and promulgation of the Law on Prior Consultation of Indigenous and Native Peoples, in which the State expressly recognises the indigenous populations’ right to free, prior and informed consent on the legislative or administrative measures which directly affect their collective rights. This law is of a special nature, in accordance with ILO Convention No. 169.
The right to consultation is defined, as indicated above, as the right of the indigenous peoples to be consulted in advance on any legislative or administrative measures which directly affect their collective rights, their physical existence, cultural identity, quality of life or development. It also refers to consultation regarding the national and regional development plans, programmes and projects which directly affect these rights, which is implemented on a compulsory basis for the State alone.
Although there is no definition of the concept of consent, it is stated that the purpose of the consultation is to reach an agreement or consent between the State and the indigenous or native peoples regarding the legislative or administrative measure which affects them directly, through an intercultural dialogue which guarantees their inclusion in the State decision-making processes and the adoption of measures which respect their collective rights.
As far as legally recognised procedures for consultation on regulations related to the forest sector are concerned, the Ministry of Agriculture has drawn up guides and the methodology used in the decentralised process of consultation for the new Forest Law and Forest Anticorruption Plan, with these forming a guiding framework for the implementation of new processes. The new law also recognises this in its preliminary title, article 2 heading 2, Participation in forest management, in the decision-making processes for definition, application and follow-up to the policies, management and measures relating to forest ecosystems and other ecosystems of wild vegetation and their components.
d. Legal framework regarding ownership, tenure or access to forest resources
The legal framework in Peru on ownership, tenure or access to forest resources is defined by article 66 of the Political Constitution, in which the State is the sovereign body in their use and regulates the conditions for their use and granting to private individuals by Organic Law. As regards land tenure, there have been no changes, because there is no ownership of the forest resources, although there is access for sustainable use; on this point, the current Forest and Wildlife Law and the new law promulgated recognise three forms of access to forest resources: 1) in the case of native communities, by traditional rights acquired over the lands for the commercial operation thereof; 2) by the granting of forest concessions, for the production of timber, non-timber forest products and environmental services, and 3) granting of rights to use forest lands which are within agricultural plots allocated in ownership, with the exception of the part classified as forest. These categories of access to the natural resource do not mean a transfer of the ownership of the natural resources but rather operation through the use and enjoyment thereof; hence they are called “usage rights”.
On this point, the State regulates access to the forest resources through the so-called operating permits; however, the definitive contracts and permits are not available to the public, a situation which is expected to change given the entry into force of the new Forest Law, which considers in its provisions the publication of the executive summary of these management plans.
Meanwhile, the concessions for forestry operations located in Permanent Production Forest are permits granted by public tender, which do not follow participative processes of consultation prior to the granting of these rights. These permits do not look into the technical and financial capacity of the applicants, they merely evaluate whether the minimum conditions for entering into a contract with the State are met (having a Tax Identification Number; authorised representatives; a Management Plan; and others). The information on the payments for permits and authorisations for the rights to use forest and Wildlife products are not published, but the indices for distribution of the forest levy are published, as this is provided for by a ministerial resolution issued by the Ministry of Economy and Finances, in accordance with article 14 of Law No. 27506 – Canon Law.
DAR, in the framework of the SLO carried out by the Sociedad de Ecodesarrollo “Skills in Governance and Transparency in the Forest Sector for players in civil society and civil servants in the Forest and Wildlife Authorities on National and Regional levels”, has been encouraging skills acquisition by stakeholders in civil society and national and regional civil servants in the forest and wildlife authorities linked to the management of forests. The purpose is to contribute to and improve performance in the implementation of the regulatory framework, the technical aspects on transparency and access to the public information and ecological crimes, as well as new forest and wildlife legislation designed to consolidate the institutionalisation of forest governance.
e. Strategic evaluation and decision-making for projects with impact on the forest sector (including extra-sectoral activities such as mining and the development of environmental services such as carbon projects, etc.)
Access to information on the Strategic Environmental Evaluations is available to the civil society organisations. In the case of the Ministry of Environment, specifically available are the consultations carried out for processes such as Territorial Planning and Ecological and Economic Zoning. In addition, the Operating or Forest Management Plans must, once approved, be available to citizens; however, these are not published, which does not comply with the regulation and obstructs access to the information and decision-making for projects carried out involving sustainable forest use. On the topic of environmental services, the recently published report by the organisation Forest Trends, “State of Forest Carbon Markets 2011” (available only in English), http://www.forest-trends.org/publication_details.php?publicationID=2963), identifies Peru as one of the largest suppliers in the carbon market, and also states that the Peruvian State is the administrator of the natural resources, but it still lacks a specific policy regarding REDD and environmental services issues; in this sense, there is a lack of skills in environmental services issues.
In short, we can conclude that the necessary regulatory conditions exist to strengthen transparency of the forest sector and compliance with the legal provisions which facilitate access to the information; however, a Government commitment is required to implement certain provisions to make it an activity which is the competence of, and inclusive of, all the sectors.