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Peru (continued)

c. Legally recognised procedures for consultation and consent

The new Forest Law No. 29763 recognises the customary laws and traditional rights of the indigenous peoples. To date, this law has still not been translated into community languages, but the General Directorate for Forests and Wildlife (DGFFS) is aware of the need to inform and involve indigenous organisations in their native languages and in a clear and timely fashion.

Although the State attempted to implement a participative process for the new Forest and Wildlife Law which included a wider public (local population, NGOs, businesspeople and indigenous populations), this process was considered insufficient and very short-term, to the extent that the indigenous movement became divided (one sector is asking for a modification of the law, while the other is content). This is why consideration must be given to a consultation process with appropriate deadlines allowing due and timely information and the active participation of all stakeholders, respecting their traditions, customs and language. For example, during the consultation of indigenous peoples, they requested that the information stage needed to be preceded by a pre-information stage, with technical support for them to understand the proposal in its entirety; because the previous processes did not have this prior stage, the forums and hearings were sharply criticised because of their technical level and because there was insufficient time for the population to find out about the proposal. Nevertheless, this experience served as a trial run for a methodological instrument on how to reach partial consensus on a legislative proposal.

The Law on the Right to Prior Consultation of Indigenous and Native Peoples was approved in 2011, constituting a fundamental milestone for the inclusion of these communities in national life. April 2012 saw the publication of Supreme Decree No. 001-2012-MC, approving the Regulation of the Law, which also went through a process of participation and consultation although the indigenous movement was divided, with a minority group supporting approval of the regulation, while a majority group considered that before it was approved, the Law needed to be modified, believing that some of its articles would violate the ILO Convention 169.

We can also point out that since May 2012, the Guide to Methodology for the Participative and Decentralised Process for the Strengthening of the Forest Sector has been in operation under the responsibility of the DGFFS. This guides the validation and creation of a National Forest and Wildlife Policy, the drawing up of the proposal for a National System of Forest and Wildlife Management and the process of drawing up the Regulation for the Forest and Wildlife Law. For all these regulatory instruments, bearing in mind the experiences with past laws and regulations, consideration is being given to a participative process with principles of inclusion and transparency, with clearly defined steps and procedures and an official announcement made to all the interested stakeholders. In addition, for the specific case of the Forest Law Regulation, consideration is also being given to a process of free, prior and informed consultation of the indigenous peoples, as a way of including all the forest stakeholders and respecting the positions and beliefs of the communities (http://dgffs.minag.gob.pe/rlffs/).

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 country's Political Constitution, which states the following: "Natural resources, both renewable and non-renewable, are a national asset. The state has sovereign power over their use. An organic law sets out the conditions for their use and granting of such to private individuals. The licence grants its holder a real property right, subject to the aforementioned legal regulation." Consequently, the concept of private property is outside the political-legal framework for the natural resources because they are in the public domain, and thus inalienable.

On this point, the development of a National Forest Policy will serve as an instrument for establishing the explicit policy relating to tenure and access to forest and wildlife resources. Meanwhile, zoning and national forest planning which will be promulgated with the implementation of the new Forest and Wildlife Law, is designed to determine the potential and limitations for the direct and indirect use of forest ecosystems and other wild vegetation ecosystems, and is an important step forward in forest management.

On this point, the state regulates access to forest resources by means of operating permits. However, the definitive contracts and permits are not available to the public, a situation which is expected to change in light of the entry into force of the new Forest Law, the provisions of which consider the publication of an executive summary for these management plans.

Elsewhere, the maps currently available partially meet the objective of providing information on the location of the certificates granted for timber extraction; however, this is still deemed insufficient because there is a need to identify the holders of this right and the type of use granted, as well as identifying their respective contract, permit and/or certificate, as is the case with maps granting oil extraction rights in Peru. The information in the maps would be of greater use if they included information from all the sectors associated with management of natural resources, and there were no discrepancies in the information provided by different organisations.

Finally, since May 2012 the Ministry of Environment has been promoting a Draft Territorial Planning Law, a regulation designed to impose some order on national territory, which has developed in an accelerated but disordered way in recent years. This will take an integrated approach involving economic, environmental and social variables. On this point, territorial planning is considered to be a state policy, which attempts to order national territory, by zoning it, in such a way that problems of deteriorating ecosystems, unequal development, lack of competitiveness, vulnerability and exposure to natural hazards are overcome. This also includes territorial exclusion, poverty, disjointed planning, controversies over the responsibilities of different levels of government and social conflicts.

e. Strategic Environmental Evaluation and decision-making for projects with an impact on the forest sector.

The only legislation currently in existence is Legislative Decree 1078 - a regulation modifying Law 27446, the National System for Environmental Impact Assessment Law, which strengthened the requirement to use Strategic Environmental Assessment (SEA) in policies, plans and programmes for sectoral, regional and local development likely to have significant environmental implications. For this reason there is currently a proposal for a draft Ministerial Ruling which seeks to approve criteria and mechanisms for formulation, implementation and tracking of SEA.

There is a formal regulated system on commercial forest operations for authorisations, permits and concessions, which are differentiated according to the levels of use of the forest. Granting of these requires the presentation of a Forest Management Plan and an Annual Operating Plan, which indicate the administrative division and the limits for use, all of which must be presented and approved by the responsible Regional Forest Authority. However, civil society organisations and local communities cannot directly obtain information on the contracts/permits granted; this information can only be accessed if accreditation is provided by the holder of the right or by means of a formal request for information. The fact that the Forest Authority does not have a specific register makes it difficult for the local population to identify these rights holders. Similarly, there is no register of the communities that are using their forests.

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