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| | Thursday, 2/25/1999 6:56 PM EST |
June 22, 1998
| This report is the product of two Bank missions: A fact finding mission in November 1997, and a legal/institutional analysis mission in May 1998. Extensive discussions were held with GoV officials, politicians, environmental NGOs and indigenous peoples organizations. Both missions were led by Richard M. Huber (LCSES). The first mission included: Mr. Jose Ramon Llovera, NGO Coordinator (LCCVE), Gary Costello, Miguel Fernandez, Consultants (LCSES), Jose Pereira, Ms. Cristina del Pozo, Gernot Brodnig, and Alvaro Atilano (Consultants). The second mission included: Charles Di Leva (LEGEN), Marta Molares (LEGLA), and Jorge Uquillas (LCSES). Mr. Bruce Carlson (LCCVE) and Eduardo Wallentin (LCC4C) provided valuable assistance in mission preparation. Roundtable discussion were held in Washington with pertinent NGOs that included the World Resources Institute, Forest Peoples Program, Environmental Defense Fund, and the Coalition for Amazonian Peoples and Their Environment. Spanish Trust Funds were used to cover part of the costs of the first mission, and Social Compact Funds were utilized to help finance the second mission. |
Introduction
1. In September 1997, the Government of Venezuela (GOV) requested Bank assistance in analyzing a range of program and policy options for managing the vast mineral, forest, and biodiversity resources of the Imataca Forest Reserve (an area encompassing 3.6 million hectares). This area is the subject of increasing debate over how to best manage the resources since the current government issued Decree 1850. The Decree threatens the Reserve by allowing increases in gold exploration and mining and commercial forestry.
3. The objective of this policy note is to provide a detailed analytical report on the findings of those two missions. Based on those findings, the final section of the report presents a preliminary three-phase action program for consideration by Bank management.
4. Mining and forestry development in Venezuela’s eastern region potentially threatens biologically rich terrestrial, riverine, estuarine, and marine ecosystems. These areas represent habitats that are of both domestic and international significance such as the interior forests of Amazonas and Bolivar, the Orinoco River, and the wide Delta Amacuro that empties into the Atlantic Ocean. All of these areas are all potentially threatened by non-sustainable mining, agriculture, and forestry development. Notwithstanding these threats, the extensive natural areas remain in good enough condition that, if properly managed, they will provide substantial opportunities for: (i) economic growth; (ii) poverty alleviation; and (iii) the maintenance of globally important biodiversity.
5. As a forestry reserve, Imataca is an “Area of Special Management Regime” (area bajo régimen de administración especial – ABRAE), which means it must be governed under a special environmental management plan. However, there is significant debate among the GOV, environmental NGOs, and indigenous groups over the recent Government decision to open up Imataca to mining. Imataca is an area about the size of Holland with important forest, mineral and water resources, and globally significant biodiversity.
6. Imataca is also home to upwards to 10,000 indigenous peoples including Warao, Arawako, Karina, Akawaio, and Pemon peoples along with non-indigenous Venezuelan and non-Venezuelan inhabitants, the majority of whom work in small and medium scale mining operations and mining support sectors. A relatively small percentage of the population is made up of employees and workers of 38 foreign mining firms from Canada, the United States, the UK, and Australia. Social relations among these various groups have become increasingly strained as more forest and mining concessions are awarded. Small and medium scale miners resent the presence of large multinational companies. Indigenous groups have been drawn into conflict with timber companies and illegal miners from Brazil and Guyana. In addition to their claim of ancestral rights to land in the Reserve, their communities are impacted by pollution and land degradation associated with mining and forest exploitation.
Institutions
7. The institutional framework for management of the Reserve is vested in a number of federal agencies and regional and local government bodies. At the federal level, the Ministry of Environment and Natural Resources (MARNR), the Ministry of Energy and Mines (MEM), and the Corporación Venezolana de Guyana (CVG), are the principle policy making, program administration and regulatory agencies. Through a variety of laws and decrees, these agencies auction land concessions for forest exploitation and mining. With the decline of government revenues from oil production and a foreign debt of $36 billion, the sale of forest and mining concessions in Imataca and elsewhere has become and will continue to be an important source of revenue for the GoV. Over the years these agencies have tended to operate on their own resulting in a substantial number of overlapping mining and timber concessions. This problem of poor institutional coordination has been exacerbated by ambiguous legislation and poor lines of communication among governmental institutions.
8. In addition to the national level institutions, municipal government, indigenous and community organizations, NGOs, and regional universities undertake a wide range of administrative, political and technical activities. Under current policy, CVG is decentralizing some of its work program to the municipal governments of Cifontes, Paez, Callao, Roscio and Antonio Diaz. Among others, these municipalities will take on responsibility for water and solid waste management and the management of electric power. As most of the population of these municipalities resides outside the geographic limits of the Reserve, the limited resources of these municipalities tend to be used in those communities.
9. The Universidad del Oriente, Universidad Experimental de Guyana, and the Universidad Experimental del Oriente have programs in geological and environmental science. The Fundacion La Salle has been active in forest research and has rights to a forest concession of 135,000 hectares. They are interested in establishing an institute of environmental and ecological research and training in the area. This institute would undertake research directed at the sustainable use of Imataca’s natural resources.
10. Indigenous organizations and community groups who live in and around the Imataca have been the most vocal in expressing their concerns over the future development of the Reserve. The National Indigenous Commission (CONIVE) and the Federación Indígena del Estado Bolivar (FIB) have been working to provide indigenous communities with rights to land and does not support the policy framework laid out in Decree 1850. In contrast, GREFECIAMIN, an association of indigenous and mining groups, has been vocally supportive of the policies and plans detailed in Decree 1850.
Legal Framework
11. Venezuela’s legal framework for environmental management consists of over 80 laws and 400 decrees. While fairly comprehensive, it suffers from content overlaps and institutional inconsistencies. Efforts are being made by MARNR, under the World Bank supported Environmental Management and Cartography Project, to re-align legal and permit requirements to make them more enforceable, particularly as they pertain to mining, hydrocarbons, and tourism. A discussion of legal issues can be found in the next section. A detailed analysis of the key legal issues based on the May mission can be found in Appendix II.
The Bank’s Role
12. Bank support to four related environmental activities, INPARQUES (Loan No. 3902-VE.), Environmental Management and Cartography project (Loan No. 4253 VE), GEF Biodiversity (VE-GE-41791), and the Pre-Investment and Institutional Strengthening Project (Loan No. 3225-VE) are substantial investments which not only demonstrate our commitment to helping the GOV incorporate environmental considerations into their development agenda, but also provide the technical support for balancing development and environment goals. Through the CAS 1997-2000, the Bank assists Venezuela in its effort to modernize national Government operations, as well as support the decentralization efforts through technical assistance to state and local institutions. The eastern region, which includes the Imataca, is a priority for the GOV as it is viewed as having considerable economic development potential. Even if Decree 1850 is upheld by the Supreme Court and new mining concessions are permitted, the above mentioned activities provide the Bank’s with some leverage in recommending and pressuring the GOV to systematically address the key environmental issues in Imataca.
13. La Ley Forestal de Suelos y de Aguas (1955) was the first national law, which recognized the necessity to regulate forest resources. Decree 2214 (1992), established guidelines for forest reserves across the country. Decree 979 (1981) set out the legal processes for the commercial exploitation of the forests of Imataca. Table 1 provides a summary of the most important laws and decrees, which affect the management of the forestlands in Venezuela, including the Imataca Forest Reserve.
Table 1: Primary Legislation That Protects Venezuela’s Forests
Legal Instrument | Year | Relevance for Forests |
| Organic Law of the Environment | 1976 | · Establishes guiding principles for environmental conservation, including the creation and protection of forest reserves and use of natural resources |
| Organic Law of Central Admin. | 1976 | · Creates the Ministry of Environment and defines its competencies |
| Organic Land Use Zoning Law | 1983 | · Establishes processes for national land-use zoning · Establishes the requirement to carry out land-use zoning · Establishes administrative procedures for planning in ABRAE (protected areas) |
| Forest Law of Soils and Water | 1965 | · Regulates conservation and use of natural resources and found in forests · Prohibits extractive activities in national parks · Establishes protected zones for major watersheds · Prohibits deforestation or annexation of forest reserves without prior approval from Congress |
| Penal Environmental Law | 1992 | · Establishes penalties for acts that degrade the environment, based on the minimum wage and jail sentences · Punishes public sector employees who grant permission for activities that damage the environment without an environmental impact assessment |
| Law Protecting Wildlife | 1970 | · Establishes Wildlife Reserves, Wildlife Refuges, and Wildlife Sanctuaries · Establishes norms for hunting, with the acquisition of the necessary permits |
| Decree 2214 | 1992 | · Establishes norms for regulating activities in forest reserves, forest lots, and other forested protected areas · Defines land-use zones to be considered in forest reserves |
| Decree 269 | 1989 | · Prohibits any mining in Amazonas state |
| Decree 2552 | 1978 | · Prohibits any commercial forestry in Amazonas state |
| Decree 636 | 1990 | · Prohibits any activity in forest reserves or forest lots that are contrary to the objectives for which the reserve or forest lot was created |
| Decree 1257 | 1996 | · Establishes regulations for developing environmental impact assessments · States that timber concessionaires who develop management plans are exempt from producing and environmental impact assessment |
| Decree 979 | 1981 | Establishes guidelines for exploitation of forest resources of the Imataca |
| Decree 276 | 1989 | · Defines administration and management of national parks and natural monuments · Prohibits activities such as mining in national parks or monuments Source: Adapted from MARNR, Balance Ambiental de Venezuela, 1994-95 (GOV: Caracas, 1995, p. 82-83). |
15. The Venezuelan Forest Service (SEFORVEN) awards concessions to harvest wood within the Imataca. Typically, these concessions range from 80,000 to 160,000 hectares and are granted for periods that range from 20 to 40 years. Each concessionaire is required to prepare a thirty year management plan and annual harvest plans, both of which must be approved by SEFORVEN. Concessionaires hire contractors to complete 1% inventories of the entire concession in preparation of the thirty-year management plan. For the annual harvesting plan, they must complete a 100% inventory of all commercial/potentially commercial species in the block that will be harvested the coming year. While SEFORVEN has awarded total concessions of over one million hectares in the Reserve, very little area has actually been cut. This is primarily due to weak demand in the domestic market (Venezuela has an export log ban) and the costs of harvesting. Virtually all harvesting occurs near forest access roads.
16. Generally speaking, timber extraction methods currently in practice in the region do not incorporate reduced-impact-logging techniques, such as directional felling or planned road development. Extractive practices in the forest reserves have contributed to forest degradation of higher value species and are contributing to the growth of secondary species of little commercial value. While forest resource inventories and management plans exist, a recent report from the Universidad de Los Andes indicates that studies of biological diversity are lacking. At the same time, the precise effects of forestry operations on plant and wildlife habitat and soil fertility have not been analyzed.
17. The GOV/US Forest Service Programs. During 1992-1995, the US Forest Service provided technical assistance to the Venezuelan Corporation of Guyana (CVG) on environmentally sound mining practices and reclamation of degraded lands. The technical assistance included the measurement of mercury contamination in the Caroni River watershed and the introduction of non-mercury recovery methods for alluvial gold and diamonds.
18. A six-year extension to the original 1992 agreement between CVG-Edelca and the USDA Forest Service was signed on October 4, 1996. The amended agreement specifies three areas of technical assistance: (i) management, restoration and reclamation of the Caroni River watershed; (ii) fire management and training; and (iii) mitigation of mercury contamination within the drainage basin. A work plan is under preparation.
19. In the context of that agreement, CVG requested that the USDA Forest Service analyze the feasibility of utilizing ecosystem management and sustainable development approaches to the management of the Imataca. In June 1997, the USDA Forest Service signed a Collection Agreement with the Ministry of Energy and Mines of Venezuela to "assess whether USDA Forest Service principles of ecosystem management and sustainable development in a multiple-use framework are transferable to the tropical forested ecosystems of Venezuela". The Imataca was selected as a specific site to evaluate the applicability of these principles. In October 1997, the USDA Forest Service undertook a fact-finding Mission to Venezuela. The four fundamental principles of ecosystem management are described in Table 2.
| Table 2: Principles of Ecosystem Management and Sustainable Development |
| (1) Land and resource management is based on an integrated ecological approach, not a functional approach, to resource management issues. The functional approach focused on the development or exploitation of individual resources without much consideration given to other uses or resources. The ecosystem management approach requires an integration of inventories of all resources, monitoring, analysis at appropriate scales, and the long-term needs of society. This integration is accomplished by an interdisciplinary team that has knowledge of the concepts of ecosystem management, the interrelationships of various resources, and the ability to assess public issues. |
| (2) Land and resource management includes the formation of partnerships for the purpose of improving the integration of information, improving economies of work and planning resources, and improving collaboration among the partners. Partnerships may or may not be limited to governmental entities, depending on the various laws that may come into play. |
| (3) Land and resource management decisions are formulated with public participation. Public participation in ecosystem management planning processes is critical for several reasons. First, the land and resources on federally managed forests belong to the people of the country and are a legacy for future generations; second, members of the public depend on these resources for their livelihoods; and third, public participation builds support for decision making processes as well as ownership in those decisions. |
| (4) Land and resource management must be based on scientific knowledge. Sound decisions for ecosystem management and sustainable development must be grounded in science in order for those responsible to make informed decisions. An informed decision is one that is made with an understanding of the interrelationships of the resources and issues involved, the short-term and long-term effects of a proposed action, and the potential cumulative effects. (Cumulative effects are those that are associated with future proposed actions, actions of others, and/or effects that may be displaced in time or place. For example, an analysis of the cumulative effects of a mining operation would include the effects of other mining operations or timber harvest activities on water quality, the potential impacts of heavy truck traffic through communities that may be miles from the mining activity, and potential effects to the road surfaces.) Source: USDA Forest Service, 1995 |
Mineral Resources Management
21. The management of mining activities in Imataca is based on a number of laws and decrees which vest policy, management and regulatory authority in a number of public sector agencies. The MEM has authority over granting concessions. CVG has also awarded concessions, but is not currently. As noted above, MARNR requires environmental impact assessments (EIAs) before permits for mining exploration and exploitation are awarded. Some decrees (1448,1740,1742) issued in the early 1990’s prohibit the use of mercury.
22. The numerous laws and decrees which regulate mining, coupled with the legal framework for forest management described earlier, have made the efficient management of Imataca exceedingly difficult. Conflicting management and resource use objectives have generated disputes between the Ministry of Mines and the Ministry of Environment. The Organic Law of Central Administration states that MARNR has exclusive jurisdiction over the management of forest reserves, but the Organic Land Use Zoning Law gives MEM the right to define and control areas important for mineral extraction.
23. The actual number of individuals who work in small-scale mining in Imataca has been difficult to determine due to the influx of illegal immigrant miners. Recent estimates vary between 20,000 and 70,000. Approximately half of the small-scale miners in Bolivar State are organized in 12 cooperatives and 76 associations, 20% of whom are women. These organizations assist miners in the financing of equipment and help organize work groups. The small-scale mining sector tends to utilize environmentally degrading practices such as suction dredges, hydraulic pumps, and mercury. Non-organized miners generally use low investment panning and mercury amalgamation techniques.
24. Over the last few years, Venezuela has sought more foreign investment to revitalize its economy. Mining concessions have been sold mostly to foreign medium and large scale mining companies. Several large companies, such as Placer Dome and Gold Reserve, and smaller mining companies commonly referred to as “juniors”, such as Crystallex and Monarch, have had concessions in Imataca for upwards to seven years. While the GOV requires that these companies operate in a manner consistent with North American environmental standards, the lack of resources coupled with inadequate monitoring and enforcement at the field level, makes rigorous monitoring difficult.
25. In 1989, Placer Dome, a large Canadian minerals company, purchased a 4000 hectar (has) concession in the southern district of the Imataca Forest Reserve. This area has a history of small miner exploration dating back to the mid-1960’s. According to data provided by around 1800 has. of the 4000 has have been deforested in order to begin mining operations. The government’s decision to auction large concessions to foreign companies has increased social conflict in the area, particularly amongst the small-scale miners. Placer Dome has recognized that “social harmony based on mutual understanding and respect between the large-scale operations and the artisanal miners is an indispensable element of company-community relations”. They also recognize that it would be increasingly difficult to carry out exploration activities in an environment characterized by poor socio-economic conditions and social conflict. A policy of coexistence with the small miner community was initiated and has included assisting miners with organization and training. The long-term goal is to fully implement a partnership project between Placer Dome and the local community, which provides economic benefits to both while utilizing environmentally responsible technologies.
26. Environmental and Social Impacts. Both small-scale and large-scale mining operations can have serious environmental and social impacts. While some environmental impacts are also common in both scales of mining activity, experts believe that the mitigation of impacts of large scale operations are easier to control as these operations usually utilize technologies which are more environmentally benign. Table 3 provides a list of the most common environmental impacts associated with mining operations.
27. While data are scarce, the most serious and dangerous environmental and public health impacts are those associated with the use of mercury. Mercury is discharged into the environment when small-scale miners fail to recover mercury tailings, either by dumping waste directly into rivers, or by releasing mercury vapors into the air when the mercury-gold compound is burned. Mercury poisoning in humans occurs as a result of accumulated build-up either through direct exposure to mercury or mercury vapor, or through indirect exposure by eating fish contaminated with methyl mercury. Mercury poisoning may result in death and has also been linked to an increase in birth defects.
28. In Venezuela, substantial metallic mercury deposits have been found to exist in riverbeds where mining is occurring. Data taken from fish in rivers near mining sites show evidence of mercury contamination. However, without baseline data for a comparison of the riverbeds before mining began, it is difficult to determine with any certainty how much mercury has been deposited in local riverbeds as a result of small-scale mining operations. While the impacts of mercury pollution may be severe at the site of mining activity, they can also affect communities at many kilometers downstream.
29. Other documented environmental impacts include deforestation, destruction of wildlife habitat, disappearance of fauna, and erosion near riverbanks. Sedimentation caused by both suction dredges and hydraulic pumps has increased the sediment load in numerous rivers such as the Caroni. Little data of this type are available for the Imataca region. To date, mining activities are reported to be directly responsible for deforestation of approximately 10,000 hectares within the 3.6 million ha. Forest Reserve.
Table 3 : Major Potential Impacts from Industrial Mining
| Stage | Environmental Impacts |
| Site Preparation | · Erosion · Run-off sediment · Deforestation · Habitat loss from road and site construction |
| Excavation | · Acid Rock Drainage · Erosion of sediments · Overburden/ waste rock · Habitat loss · Species population loss · Erosion · Water pollution · Increased run-off and subsequent reduction in local groundwater |
| Crushing/ Concentration | · Acid Rock Drainage · Waste rock and tailings |
| Heap Leaching | · Acid Rock Drainage · Water pollution from leaks in storage ponds · Sludge from neutralization of contaminated water · Loss of species population from water pollution |
| Indirect impacts | · Increased colonization due to road development · Increased energy requirements · Species population loss due to hunting Source: Based on EPA Office of Compliance, Profile of the Metal Mining Industry, Sector Notebook Project (USEPA: Washington, DC, 1995, p. 29-30). |
32. While conflicts and social impacts have been documented, a systematic study of local institutions, communities, and indigenous groups has not been undertaken Population estimates of indigenous peoples in Imataca vary from the 1990 census estimate of 3233 to 10,000 mentioned in various human/indigenous rights reports. The total population of the Imataca is around 50,000.
. The implementation of any resource use and management plan needs to take into account the social dynamics at work in the area. While the economic opportunities associated with new mining operations may provide private benefits, in all likelihood there will be significant social and environmental costs, particularly to communities currently living in the Reserve and in some cases to communities located in the buffer zone.
Land Use Planning
33. The Government of Venezuela has stated that development strategies must be in place for the Imataca region and other areas where mining, forestry and environmental concerns converge before the government removes barriers to private mining investment in the country. The approval of the Ley Forestal de Suelos y de Aguas (1955) and the Ley Organico para la Ordenacion del Territorio (1996) established the key legal and planning instruments governing land and resource use in the Imataca. The former Law requires that a Plan de Ordenamiento be prepared that will identify areas within the Reserve where mining, forest exploitation and other economic activities may be undertaken, as well as designated protected areas. To address this challenge and insure full compliance, the government established an Inter-Ministerial Commission, which includes the Ministries of Energy and Mines, Environment, Defense, Planning, and CVG to develop a national strategy for multiple-use resource management.
34. Under the direction of MARNR and SEFORVEN, El Plan Ordenamiento Reserva Forestal Imataca (PORFI) was prepared in 1997. The information and analysis contained in PORFI serves as an input into the preparation of Decree 1850.
35. The majority of the information provided in PORFI is descriptive and lends itself more to a “regional profile” than a Plan based on rigorous data analysis, which establishes both processes and actions. The actual institutional responsibilities for PORFI’s implementation have also been critiqued by local experts. PORFI proposes a land-zoning scheme based on 5 categories of use that opens up 1,943,259 hectares (52%) of the 3,640,889 hectares of the Imataca Forest Reserve to mining. The breakdown of the zoning scheme is the following:
· Forestry Management Zone - 1,308,800 million hectares (35.95% of the area) whose zoning permits forestry, security/defense, rural residential, research and tourism.
· Mixed Use - 1,383,019 million hectares (37.08% of the area) whose zoning permits forestry, mining, security/defense, rural residential, research and tourism.
· Management of the Flood Plain - 560,240 hectares (15.39% of the area) whose zoning permits forestry, security/defense, rural residential, research, industry, mining and tourism.
· Special Research - 261,840 hectares (7.19% of the area) whose zoning permits forestry, security/defense, rural residential, research and tourism.
· Protected Zone - 254,000 hectares (3.49% of the area) whose zoning permits forestry, security/defense, rural residential, research and tourism.
36. PORFI also suggests the formation of a Technical Commission comprised of representatives of public sector entities such as National Planning Agency (CORDIPLAN), MARNR, MEM, Ministry of Education, State and municipal governments, CVG, the private sector and a representative of indigenous organizations. The role of this body would be to oversee the implementation of PORFI.
37. A public consultation process is briefly mentioned in PORFI. The document suggests that this process would begin after the preparation of the first draft. Five round tables were held in each zone to solicit recommendations to be incorporated into a final version for approval by the Council of Ministers. As this process began after the PORFI draft was completed, it has been the subject of intense criticism from NGOs, indigenous groups, scientists and the academic community.
38. The proposed zoning scheme describes elements of an initial land use management plan. However, it is technically weak in many areas. For example while each of these zones has unique ecological, geological and climatic features, the proposed uses in each are virtually the same with the exception that mining is not permitted in three of the five zones. The scheme also fails to incorporate the social cost and human capital elements into the overall use strategy. Only one paragraph, (Capitulo VI, Articulo 56) mentions issues such as the permanence and cultural heritage of indigenous communities living in these proposed zones. This paragraph states that Decree 1850 favors the permanence of these communities within the Forest Reserves. Environmentally sensitive areas have not been identified nor have any actions been specified to protect the Reserves’ biological diversity.
39. The Faculty of Environment and Forestry Sciences of the Universidad de Los Andes has taken a special interest in the Imataca. A group of specialists from that Faculty reviewed PORFI and have identified areas that require further attention. One area of special concern is the issue of the role of national level institutions if PORFI were to be implemented. While they recognize the importance of national level institutions in the policy and planning process, they question whether the current institutional model detailed in PORFI and Decree 1850 is a suitable model for generating economic development while responding to the priorities of environmental and indigenous groups. They recommend the establishment of an autonomous agency to coordinate and manage the Reserve under an Integrated Regional Development Plan (IRDP). This agency would oversee all development and conservation activities and would be representative of a broad range of interests. The IRDP would be comprised of 7 programs: (i) Conservation and Environmental Research; (ii) Indigenous Organization Strengthening; (iii) Social Development; (iv) Mining; (v) Forestry; (vi) Security and Defense and; (vii) Monitoring and Control.
Legal Issues
40. As noted above, Decree 1850, which was published in the Official Gazette No. 36.215 for the Imataca Forest Reserve in May of 1997, authorizes mining activities in the Imataca Forest Reserve. A number of legal issues have been raised in the case challenging the validity of Decree 1850, which is currently pending before the Supreme Court. (See Appendix II for a detailed discussion of the legal issues.) These issues are discussed and analyzed in three recent reports on the Imataca. They were reviewed in detail by both Bank missions. Comision Permanente de Ambiente y Ordenacion Terrtorial del Senado et al. Encuentro de Evaluacion y Consulta Reserva Forestal Imataca. Octubre 1997; Ministerio Publico, Fiscal General de la Republica, Analysis Legal de Decreto 1.850. Octubre 6,1997; Congreso de la Republica Camara de Diputados.
The main findings of these reports are that Decree 1850 is unconstitutional and illegal, lacks scientific foundation, and is inadequate in terms of the public participation/consultation required by law.
41. The legal brief prepared by the Attorney General’s office and the report prepared by the Environment Commission of the Congress both recommend nullification of Decree 1850 based on its failure to recognize indigenous rights specified under the Venezuelan Constitution and under international agreements, such as the International Labor Organization’s Convention 107, which established indigenous peoples’ “right of ownership, collective or individual, of the members of the populations concerned over the lands that these populations traditionally occupy.” Furthermore, the Attorney General’s report doubts the legality of forest and mining legislation passed over the last thirty years, which granted concessions to these groups. This brief has been formally sent to the Supreme Court.
42. In addition, Decree 1850 has been criticized by a number of different stakeholder groups, including proponents of indigenous rights and biodiversity protection. The report entitled, “Encuentro de Evaluacion y Consulta Reserva Forestal Imataca” was prepared based on the results of a two-day workshop which evaluated both the Decree and the larger PORFI document. Participants in the event included indigenous groups, national and international NGOs, representatives of national and local government and the private sector. In addition to challenging the legality of the Decree, the meeting recommended that a new Plan be prepared which addresses both the technical weaknesses of the PORFI and insures wider participation.
Indigenous Peoples
43. As already noted, the Imataca Forest Reserve is home to a number of indigenous peoples. Like most of the indigenous communities and other ethnic groups living in the tropical forests of the East, South and North-west of Venezuela, in areas designated as ABRAES, the peoples of the Imataca maintain their traditional economy, a combination of shifting cultivation, hunting, gathering and fishing. Their rights to the land and natural resources of the Imataca are defined under the constitution, laws and norms of Venezuela. (See Appendix II for a detailed discussion of the legal issues pertaining to indigenous peoples.)
44. The 1961 Constitution of Venezuela provides for the protection of indigenous peoples in its provisions for the protection of special groups. However, no special rights of indigenous peoples are set forth, and the State’s obligation to protect indigenous peoples is not well defined.
45. As is the case in many Latin American countries, there is no special indigenous peoples law. In Venezuela, the main pieces of legislation which deal with indigenous land regularization are those related to the country’s agrarian reform policy. However, in forest reserves like the Imataca, specific land parcels cannot be allocated for agrarian reform purposes due to the restrictions on agricultural use in such areas. Furthermore, although the indigenous peoples lived there prior to the formal/legal establishment of the Reserve, they continue to occupy land in the Reserve without clear recognition of their legal rights to the land and natural resources. Currently, there is no institution with the authority to regularize land tenure for indigenous peoples in the ABRAEs. The existing Norms for the Administration of Forestry Zones include some recognition of the cultural/natural resources needs of indigenous peoples, but they do not extend any recognition of land tenure rights.
46. The above-referenced Norms recognize an “area designated for indigenous communities” among the types of management areas that can be authorized within a forestry reserve. Such area is meant to regulate the activities of the community and ethnic groups residing in the forestry reserve who have some ancestral claim to the land, support themselves by traditional subsistence activities, and live in consonance with the environment.
47. This report attempts to analyze the most pressing legal/institutional, natural resource, environmental and social issues facing the Imataca Forest Reserve. Obviously, a great deal needs to be done at both the national and local levels in order to achieve socially and environmentally sustainable development. Efforts need to address both institutional and technical constraints to effective long-term management. At the same time, a serious effort needs to be mounted to mitigate the environmental and social impacts of forestry and mineral exploration activities.
49. At this point of the paper it must be stated that there is an intense desire on the part of all actors and user groups to sit down in dialogue and resolve the Imataca dilemma. In meetings held during the first mission, the Bank was asked to act as an “honest broker” in the conflict resolution process. In the wrap-up meeting, the mission was credited by the Vice-minister of CORDIPLAN with assisting in the process of opening a dialogue between the executive and legislative branches of Government and among local Government, NGOs, and user groups.
Legal/Institutional Recommendations.
50. The GOV needs to review and clarify the current legal framework and the drafting of new legislation to manage Imataca should be a high priority. Additionally, as the public consultation process associated with the preparation of the PORFI was inadequate and was criticized by NGOs and community organizations, any future efforts to prepare legal guidelines, laws or decrees should include a well defined and acceptable public consultation process.
51. The regulatory framework governing the Imataca Forest Reserve has failed to institute an effective system of resource allocation and management. The normative ambiguity and institutional weaknesses have combined for a high degree of legal insecurity and erosion of public authority. As a result, the existing regime has not only been incapable of managing competing interests, but has actually contributed to and aggravated some of the resulting conflicts.
52. The Imataca case has also thrust some structural and systemic problems of resource planning and indigenous policies in Venezuela into the limelight. While an annulment of Decree 1850 could hardly be expected to resolve all the underlying conflicts, the deliberations of the Supreme Court and the surrounding public debate are a window of opportunity to open a dialogue on those issues and to bring about some long overdue reforms in the legal and institutional landscape.
53. As most remedies fall within the realm of legislative and administrative action, which is subject to lengthy political processes, it is necessary to complement this path with a negotiation approach, which could help to contain the current conflicts in the short- to medium-term. It could also provide an alternative approach for the development of long-term collaborative models of resource management. In this context, a participatory micro level planning approach should be an element of any program to analyze options and implement recommended conservation and development programs. This approach would: (i) contribute to the decentralization of decision-making; (ii) stimulate grassroots participation in local planning; and, (iii) assist rural communities formulate development strategies and investment plans.
Recommendations Relative to Strengthening Indigenous Peoples Rights.
54. The above described Constitutional, land titling and other special provisions applicable to indigenous peoples do not provide a clear legislative framework for the recognition of indigenous peoples rights. However, these provisions could be a useful preliminary set of rules to guide the development of a policy for indigenous peoples in Venezuela, in general, and for the IMATACA Forestry Reserve in particular.
55. With or without a Supreme Court ruling on the constitutionally of Decree 1850, the Government should:
· Articulate an indigenous peoples policy which would address: (a) land tenure rights; (b) rights to forests, waters and other natural renewable and non-renewable resources, including mining; and (c) education/health.
Three Phase Action Program.
57. Based on the above analysis and legal/indigenous peoples recommendations, the Bank would move forward with a Three-Phase Action Program of support to the GOV. The first two phases may occur prior to the Supreme Court decision. The three phases are:
· Phase I- Study Tour -- Government officials (MARNR, CORDIPLAN, MEM, and CVG), local elected officials, NGOs, and umbrella indigenous groups visited successful sustainable development pilot projects and indigenous peoples organizations in Colombia and Ecuador. This one week study tour was completed in April, 1998.
· Phase II -- Baseline Study of Imataca and Buffer Zones. Will include: (i) social and economic data collection and analysis; (ii) ecological and biological diversity analysis (including human ecology); and, (iii) an institutional study. These studies will be undertaken to support the project preparation process. The output will also detail a program of technical assistance to MARNR, MEM, and relevant stakeholders on how to carry out EIA, participatory microplanning, and methodologies of public participation. The Universidad Experimental de Guyana has agreed to assist with these studies. September 1998-December 1999.
· Phase III -- The Imataca Forest Reserve and Environs Sustainable Development Project (LIL). July 1998-June 2001 as presented below.
58. The development of the third phase would be based on the GoV’s commitment to a participatory process that fully accounts for the views and interests of all stakeholder groups which have an interest in the Imataca. Based on these studies, continued dialogue, and the resolution of the dispute in the in the Supreme Court, a LIL would be designed that might include the following types of activities:
Institutional Strengthening of Local Community-based Groups, Membership Organizations and Communities:
· Support to second and third level indigenous and rural membership organizations in the following areas: (i) subproject participatory planning, preparation, implementation, and maintenance; (ii) financial management and administration; (iii) cultural patrimony and (iv) human resources development;
· Assistance in the design and establishment of a conflict management process consisting of three stages: (i) a detailed stakeholder analysis and socio-economic assessment that focuses on actual and potential conflicts in Imataca and environs; (ii) establishment of a forum which brings together all stakeholders for mutual learning; and, (iii) product-oriented (e.g. new plan de ordenamiento) collaborative problem-solving.
Regularization of Land and Water Rights particularly as they pertain to indigenous and rural peoples:
· Support for basic legal training related to titling and regularization of land tenure rights in selected areas;
· Review the adequacy of the indigenous land titling regime of the Ley de Reforma Agraria in light of Venezuela’s international obligations and the evolution of standards and practices on the recognition of indigenous ownership over ancestral territories; and
· Conduct a study on indigenous land rights in ABRAE in order to provide a baseline for clarifying the normative and factual situation, and to develop options for sustainable tenure and subsistence regimes in these areas.
Support to the Artisanal and Medium-Small-Scale Mining:
· Technical assistance to small scale miners for: (i) participatory microplanning and organizational development; and (ii) environmentally sound mining practices.
Support to Sustainable Forestry and Natural Resources Management:
· Support under this component would be targeted toward: (i) a program consisting of conservation of forests ecosystems, (ii) techniques of reduced impact logging; (iii) support of forestry research and, (iv) forest monitoring and accounting;
· Develop guidelines on the compatibility of sustainable forestry and mining activities and propose amendments to the existing regulatory framework. On the basis of the resulting biodiversity profile, develop a new zoning regime and/or adopt a different management category.
Rural Investments:
· Support for demand-driven small-scale investments, or subprojects, including: (i) natural resources management; (ii) community-based economic infrastructure; (iii) social infrastructure; (iv) training; (v) technical assistance, including pre-investment studies; (vi) economic projects and (vii) micro-enterprises.
Institutional Strengthening of CORDIPLAN, Oficina de Asuntos Sociales:
· Support to CORDIPLAN in: (i) financial management and administration; (ii) assistance to elaborate a program of selected legal reforms such as elimination of forest subsidies, policies and a national plan for indigenous and rural development and (iii) establishment of a Project Implementation Unit and offices in both States that comprise the Imataca Forest Reserve.
Appendix I -- Bank Mission Terms of Reference
The objectives of the second mission were to: (i) conduct a comprehensive analysis of Venezuela's current environmental, natural resource management and conservation, legal/institutional framework as it applies to the Imataca Forest Reserve and environs; (ii) review Decree 1850 and the various legal opinions issued on it in the context of the above framework; (iii) identify gaps, overlaps, weaknesses and contradictions in the current framework and propose measures to overcome them by way of legislative reform and institutional realignments; (iv) analyze the land and resource tenure regime in the Reserve and environs with a particular emphasis on customary indigenous property rights and their overlap with existing mining concessions/permits; (v) review existing institutional arrangements to determine the adequacy of the institutional structure and capacity to perform the necessary planning, regulatory, monitoring and enforcement functions; (vi) evaluate the capacity of existing legal/institutional arrangements to manage resource conflicts in the Reserve and environs; and (vii) propose alternative dispute settlement regimes; (viii) review the legislative framework of indigenous peoples rights in Venezuela (domestic law and international agreements), as it relates to their rights to ownership/recognition of land and natural resources; (ix) identify the existing gaps in such legislation; and (x) recommend actions necessary to secure or improve the rights of indigenous peoples.
In consultation with Government authorities, NGOs, and indigenous representatives rank the recommendations in a manner that addresses the potential for the Bank’s continuing and future involvement. (Note: the review of their land rights would cover those rights that might be contemplated under existing land reform legislation and/or under different types of land recognition that might apply to indigenous lands in protected and special areas such as Imataca.)
Mining Activities in the Imataca
One of the key arguments in the Supreme Court dispute is the alleged incompatibility of mining activity in the Reserve, given the status of Imataca as a Reserva Forestal. In this context, it is noted that some forms of mining have been going on in Imataca for decades. The first concessions were granted in the 1960s based on a number of Decrees, which opened certain parts of the Reserve to mining operations. Thus, one issue that the Supreme Court might choose to consider is whether to allow mining in a Reserva Forestal where the mining arises from concessions granted prior to Decree 1850.
As noted earlier, the framework for land use and the spatial distribution of economic activities is primarily outlined in the Ley Orgánica para la Ordenación del Territorio (LOPOT) of 1983. This law includes a hierarchy of different planning instruments and establishes in its Art. 15 seq. a system of “protected” areas, the ABRAE (Areas Bajo Regimen Administrativo Especial), which include Reservas Forestales. The LOPOT does not specify uses in Forest Reserves. It leaves this to the Ley Forestal de Suelos y Aguas (LFSA) of 1965 and its implementing regulations and the respective plan de ordenacion and reglamento de uso for the specific Reserve.
The LFSA defines Reservas Forestales in Art. 55:
In terms of other permitted uses Art 136 para. 1 stipulates: Los anteriores apartes no excluyen otros usos racionales compatibles con el fin para el cual fueron creadas las reservas forestales de acuerdo con los estudios técnicos que realice el Ministerio del Ambiente y de los Recursos Naturales Renovables. (emphasis added)
Thus, it appears important to rationalize whether mining activities are an uso racional compatible within the goals of a Forest Reserve.
In this context, another implementing regulation of the LFSA, the Normas para la Administración de Actividades Forestales en Reservas Forestales …have been referenced in the Supreme Court petition. These rules essentially repeat the LFSA’s definition of a Forest Reserve but broaden the notion of uso forestal, which is defined in Art. 2 as:
Environmentalists also argue that the potential for overlapping timber and mining concessions could, in the majority of cases, not only be irreconcilable but also create a kind of legal insecurity that has been plaguing the Reserve since its inception. Regardless of the ultimate ruling by the Supreme Court on Decree 1850, the legislature could “reduce the complexity” of the logging-mining tug-of-war by amending and streamlining the relevant regulations and clarifying the status of mining activities in Reservas Forestales.
Environmental Impact Assessment (EIA) -- The proficient application of environmental impact assessment (EIA) techniques are key to environmentally sustainable development, in Venezuela and elsewhere. According to Art. 19 of Venezuela’s Ley Orgánica del Ambiente (LOA) of 1976 “… activitades susceptibles de degradar el ambiente quedan sometidas al control del Ejecutivo Nacional por órgano de las autoritades competentes.” This control consists of a system of authorizations and permits granted by the Ministerio del Medio Ambiente y de los Recursos Naturales Renovables (MARNR) on the condition of an environmental impact assessment for most industrial activities and, where necessary, the implementation of mitigation measures.
The main legal instrument that is key to the success of EIA is Decree 1257 of 1996 on Normas sobre Evaluacion Ambiental de Actividades Susceptibles de Degradar el Ambiente. This Decree provides the procedures for conducting environmental impact assessment. Venezuela does not appear to have had the time, nor perhaps the resources, to dedicate significant time to the operations of this important Decree. Thus, EIA is an area where assistance could be very useful. Regarding mining, Article 6 of the Decree makes EIAs mandatory for the exploitation of metals and precious stones. Thus, even if mining might be allowed in Imataca, it remains subject to a process of authorization that integrates the environmental component and weighs it against economic benefits. At the same time, it does not refer to some of the specific types of activities that plague Imataca, the artisanal mining. It does refer to “small scale” mining, and perhaps this term might be considered to cover artisanal.
While it has been noted that few inter-agency channels exist, the procedures for environmental impact assessments are an exception. Detailed rules and regulations exist for a system of permits and authorizations required for operators of activities potentially damaging to the environment, and it is required that all relevant agencies take part in the process, and that public participation take place. In addition to the requirements under the Ley de Minas of 1945, the exploitation of most mineral resources, including gold and diamonds, is subject to autorizaciones/aprobaciones para la ocupación del territorio and para la afectacion de recursos naturales renovables granted by the MARNR. These permits, in turn, are dependent on the positive evaluation of an environmental impact statement by the MARNR. Art 15 of the Normas sobre Evaluacion Ambiental de Actividades susceptibles de degradar el Ambiente makes it clear that the authorizations need to be secured before concessions are granted by the MEM.
While these procedures are well defined, they have not led to a significant inter-ministerial dialogue at the policy level, which might have resulted in guidelines for environmental aspects of mining activities. Thus, land use and environmental permits are issued on a highly casuistic basis and often lack a solid scientific assessment due to deficient technical capacities. In many cases mining has been going on without any of the required permits.
A new Mining Law is currently being debated in Congress. While it is fairly well-written, some in the environmental community believe that it has the potential to reduce further the co-operation between ministries. This new law seems to provide that the Ministerio de Energía y Minas will be in charge of all environmental aspects of mining. This is ironic, because according to the “Exposicion de Motivo -- Proyecto de Ley de Minas”, which accompanies the law as explanation, a stated purpose in drafting the law was to try to reduce bureaucratic overlap. A preliminary review of the law indicates that the law could succeed in this manner, depending upon the efficacy of other legislation, principally, that of the EIA legislation. This Mining Law does not refer to MARNR as extensively as some may have hoped. However, if the law works well, and MARNR is sufficiently supported, the EIA norms and the Mining Law could work in tandem. The Bank should seek further clarification on this point. The Bank should also address the concern that the Mining Law does not provide clear guidance on how to address subsoil rights, especially in those areas which might otherwise be protected areas. (“El derecho a la explotacion minera a que se refiere este articulo, estara limitado a las sustancias minerales que se encuentren en el subsuelo, en aquellas areas en las cuales la ley no permita la explotacion minera en el suelo”). (See Article 25) It could be that this concern can be addressed through protection that exists in other legislation, but this point should be clarified.
In discussions with the Government, they indicate that MEM will cooperate with other agencies through provisions such as those set out in the Decree 1257. This may very well be true, because Decree 1257, Resolucion No. 56, Normas sobre Racaudos para la Evaluacion Ambiental de Programas y Proyectos Mineros y de Exploracion y Produccion de Hidrcarburos, does seem to give MARNR the authority to evaluate the EIAs and that acitivity cannot proceed without MARNR approval, but given the importance of this issue, the Government could be asked to clarify this point.
This point was raised in the recent controversy over whether the new mining law could imperil other national parks The erosion of the competencies of MARNR would add to the fragmentation of environmental control. Thus, again, while these points seem at least on paper to be addressed in the Normas, it would be useful for them to be clarified.
In the context of EIA procedures, it is worth noting that for logging operations in Forest Reserves the EIA is considered to be fulfilled by the plan de ordenacion y manejo forestal, called for by the Ley Forestal de Suelo y Aguas for commercial logging operations. These management plans, do not, however, require stringent environmental assessments.
Public Participation -- The Supreme Court petitions concerning Decree 1850 make explicit reference to the lack of public participation in the elaboration of the Plan de Ordenamiento y Reglamento de Uso for Imataca. In this regard, Art.32 para. 2 of the Ley Orgánica para la Ordenación del Territorio stipulates:
The example of Imataca could provide an incentive to review, both for the land use planning and EIA processes, whether the ruling norms and practices are in conformity with international doctrine in this matter and to develop alternative participatory mechanisms, particularly as far as indigenous and other local communities are concerned.
Biodiversity Conservation -- A particular dimension of ecological impacts concerns the threat to biological resources. It has been noted that the Imataca Forest Reserve is very rich in biodiversity, requiring special conservation measures. In this context, reference is made to Venezuela’s obligations under a number of international conventions such as the Convention on Biological Diversity and the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere of 1940. Both Conventions call for the conservation of biological resources through the establishment of a system of protected areas. The Convention on Biological Diversity goes a step further and also calls on the Contracting Parties to regulate and manage biological resources outside protected areas (Art. 8c).
While the two treaties provide for binding obligations under international and Venezuelan domestic law, both Conventions are programmatic in nature and leave it to the Contracting Parties how to implement the objectives set forth. Therefore, these norms cannot form the legal basis for concrete rights or violations in regard to the protection of specific resources or areas such as Imataca. Furthermore, it could be that the productive and commercial nature of Reservas Forestales would exclude them from the IUCN definition of protected areas and the corresponding management categories, which are central to the coverage of the two Conventions.
There remains, however, the concern as to how increasing scientific evidence about the high levels and distribution of biodiversity in Imataca can be taken into account. Although Decree 1850 foresees in its zoning plan a small zona de protección, this might not be adequate – neither in terms of the legal status nor with regard to the extent of the area. More comprehensive biological assessments and resource inventories are required to determine the adequacy of the current management category and the potential need to “upgrade” the Reserve (or parts of it) to a National Park or similar category. The Biosphere Reserve status with its multiple-use concept could prove a viable alternative, even more so as it is a legal category in Venezuela.
B. Indigenous Peoples Issues
Legislative Framework for Indigenous Peoples (1961 Constitution) -- The 1961 Constitution of Venezuela contains only one provision that refers to indigenous peoples, and it is among other provisions of protection of special groups (campesinos and indians). There are no special rights of indigenous peoples set forth, but a regime of exception, of a temporary nature. The State’s obligation to protect them is not well defined, and it has an “integrationist” goal (see para. 72 for “integrationist”).
Article 77 reads: “The State will aim to improve the living conditions of the campesino population. The law will establish the regime of exception that the protection of the indigenous communities and their progressive incorporation to the life of the Nation will require.”
The special law required by article 77 of the Constitution was never enacted (one draft has been in Congress for some time) and the “integrationist” principle seems to be guiding the policies drawn by some Venezuelan authorities In particular those dealing with decree 1850 in CORDIPLAN and MANR.. These authorities believe that after many years of “integration” all inhabitants of Venezuela have the same rights and obligations and therefore indigenous peoples have no special rights. Other authorities, however, feel that there are indigenous groups that have the right to a special protection and treatment by the State See paper submitted by Fiscal General de la República, to the Supreme Court (re: IMATACA) on October 6, 1997 (copy furnished by MARNR), and opinions expressed by representatives of the Foreign Ministry, the Directorate of Indigenous Affairs and the Treaty of Amazon Cooperation I discussed those matters with.. Therefore, the “integrational” policy should be understood with flexibility. Congress is now considering for ratification ILO Convention 169 that would bring into legislation a non-integrationist policy approach. Even if such Convention is not enacted, subsidiary legislation is also in force (described below) that is not aiming to assimilate and integrate all indigenous peoples in Venezuela. A decision of the Court on this issue may give some clarity to where the indigenous peoples policy of Venezuela will go.
Land Regularization Legislation -- Most of the indigenous communities and other ethnic groups are living in the tropical forests of the East, South and North-west of Venezuela designated as ABRAES. Their traditional economy is a combination of shifting cultivation, hunting, gathering and fishing.
Despite this cultural reality, and as it is common in many Latin American countries where there is no special indigenous peoples law, the main pieces of legislation which deal with indigenous land regularization are those related to the country’s Agrarian Reform policy. Therefore, they apply to lands that can be certified “appropriate” for agricultural use.
The legal regime for indigenous lands in agricultural areas and ABRAES follow:
Agricultural Lands -- Some indigenous communities were granted titles to land prior to a 1904 law Copy of law not yet available (being sought). that required the registration and partition of all such lands. Those that were not registered and partitioned were later transferred to the Municipalities (as ejidos) and thus lost by the indigenous communities. Procedures are being implemented by the land regularization agencies to return some of the “not-partitioned and unregistered” lands from the Municipalities back to the indigenous communities.
In the early 1960s, the Agrarian reform law Ley de Reforma Agraria published in the Gaceta Oficial No. 611, Extraordinary of March 19, 1960, Reglamento de la Ley de Reforma Agraria sobre Regularización de la Tenencia de la Tierra (decree 246) published in the Gaceta Oficial on August 23, 1979 and Reglamento a la ley de Reforma Agraria published in the Gaceta Oficial No. 1089 Extraordinary on March 2, 1967. and complementary legislation introduced a new legislative regime to address the titling of indigenous lands but restricted to vacant lands (tierras baldías), Ley de Tierras Baldías y Ejidos, published in the Gaceta Oficial Extraordinary on September 3, 1936. Article 1 considers tierras baldías those that are not ejidos and are not privately owned. state lands and expropriated private lands.
Indigenous peoples maintaining a communal or extensive family status are recognized the right of enjoyment of the lands, forests and water that they occupy or own in the places where they usually reside. Agrarian Reform Law, footnote (12) Article 2. If the areas owned or occupied by indigenous communities are declared protected areas or equivalent, such communities should be relocated with compensation. Ibid Article. Restitution of the lands, forests and waters for the benefit of such communities or families is also contemplated. Ibid Article 161 paragraph 3. The National Agrarian Institute - IAN (autonomous but linked to the Ministry of Agriculture) is in charge of the titling and land regularization programs. In the application of the land regularization policies, IAN is required to give preference to small farms and indigenous communities. Decree 246, footnote [(12)] Article 21 The Agency for the Defense of Agrarian Rights (Procuraduría Agraria) is the legal representative of the indigenous communities in land cases affecting them. Ley Orgánica de Tribunales y Procedimientos Agrarios as the amendment was published in the Gaceta Oficial No 3015 Extraordinary, on September 13, 1982 – Articles 35/36/37.
The land ownership recognized by IAN is through agrarian reform titles which: (i) if the lands are left idle can be revoked; (ii) cover a limited lot size (if considering the indigenous peoples subsistence needs); and (iii) can only be granted by IAN when the status of vacant, state or other public entities’ land is certified and can thus be transferred to IAN by the appropriate owner (by the Ministry of Agriculture for the vacant lands). As to the latter restriction, in most cases, in the absence of such certainty, provisional titles are given by IAN. Neither peasants nor indigenous communities can directly claim ownership of the lands traditionally occupied and otherwise unclaimed by private citizens which must first be found to be tierras baldías and transferred to IAN. Other features of the titles which have been granted by IAN for indigenous lands are the following: (i) free of charge; (ii) to cooperatives or the individuals forming a community or extended family (the indigenous communities lack juridical personality); and (iii) communal.
Following the enactment of the Land Tenure Regularization Decree Decree 246 – Reglamento de la Ley de Reforma Agraria sobre Regularización de la Tenencia de la Tierra – published in the Gaceta Oficial on August 23, 1979., usufructuary titles have also been granted by IAN to indigenous communities. IAN is authorized to grant rights of use and enjoyment of the unutilized lands (not yet transferred to IAN) which are occupied by communities eligible for agricultural land rights under the law Ibid Article 15.. The fruits and other produce of the land so granted can be pledged to obtain loans. These usufruct titles, as well as the provisional ownership titles, are both meant to be temporary but in most cases have remained as such without any Governmental action to take the steps required to clarify the legal status.
ABRAEs -- The national parks, national forests, forestry reserves, protected areas, natural monuments, and fauna sanctuaries cannot be assigned for agrarian reform purposes Ibid Article 28. due to the restrictive use of such areas. In addition, all ABRAEs are ruled by Presidential decree.
Most of the indigenous peoples live in ABRAEs and have lived there prior to the establishment of ABRAEs. As a result, they lack clear policies and authority for the recognition of land and natural resource rights, although limited usufruct rights of indigenous groups residing in such areas have been recognized in the management plans of some ABRAES.
There is no institution legally assigned to regularize the land tenure situation of indigenous peoples in ABRAEs and this limitation applies to both the areas where productive uses are foreseen (i.e. forestry reserves) and as those of a conservation/recreation nature.
The Norms for the Administration of Forestry Zones Decree 2214 published in the Gaceta Oficial on April 28, 1992, article 5 (b). call for special recognition of the cultural/natural resources needs of indigenous peoples, and based on this, some accommodation of their existence have taken place but not extending to any recognition of land tenure rights.
Special Treatment Legislative provisions
· Environmental Penal Law -- Indigenous communities and ethnic groups are exempted from the penalties set forth in the Environmental Penal Law. Ley Penal del Ambiente published in the Gaceta Oficial No. 4358, Extraordinary on January 3, 1992. For this exception to be applicable, the activity (otherwise subject to penalty) has to be carried out: (i) in a location of ancestral occupation by the group or community; and (ii) in a manner deemed to be in accordance with their subsistence patterns, space occupation and relationship to the ecosystem. Ibid Article 67. The agency in charge of indigenous affairs Currently on Directorate of Indigenous Affairs within the Ministry of Education. is to provide socio-anthropologic reports as requested by the judge, and the judge should consider this report and the indigenous community’s opinion.
· Decentralization Law -- The 1989 decentralization law Ley Orgánica de descentralización, delimitación y transferencia de competencias del poder público published in the Gaceta Oficial Number 4153, Extraordinary on December 28, 1989.. aims to develop the framework for transfer of responsibilities and resources from the National Government to the States. Ibid Article 1. Within this framework, the list of activities of joint jurisdiction includes in article 4 “the protection of the indigenous communities, taking into account the preservation of their cultural traditions and the maintenance of their territorial rights”. It remains to be verified how sharing of this generally stated “protection” is being, or will be, pursued.
· Tourism Law -- The final provisions of the Tourism Law Tourism Law published in the Gaceta Oficial No. 35117 of December 21, 1992, Articles 59 and 60. set forth the requirement that such law be applied, in respect of areas where indigenous communities and ethnic groups reside, in accordance with the exceptional regime set forth in the Constitution. Additionally, all tourist projects, programs or developments that could disturb or affect the life of the indigenous communities were prohibited by such law.
· Norms for the Administration of Forestry Zones -- These norms provide an illustrative list of the type of management areas that can be authorized within a forestry reserve, including in such list an “area designated for indigenous communities” Decree 2214 published in the Gaceta Oficial on April 28, 1992, article 5 (6).. Such area is meant to regulate activities of the community and ethnic groups residing in the forestry reserve who have been in ancestral residence, supported by traditional subsistence activities, and living in consonance with the environment. The description of the indigenous groups that could benefit from such special management zones is almost identical to that of the indigenous groups exempted from the provisions of the Environmental Penal Code.
· ILO Convention 107 -- Venezuela ratified ILO Convention 107 in 1983. Law ratifying the International Labor Organization Convention for the Protection and Integration of Indigenous Populations and other Tribal Groups in Independent Countries. published in the Gaceta Oficial Extraordinary No. 3235 on August 3, 1983. Some officers in MANR/CORDIPLAN argue that such law is unenforceable because the ratification was not notified to ILO. The Foreign Affairs Ministry believed the ratification to be in order and the Convention legally binding on Venezuela. Even though, the spirit of ILO Convention 107 is integrationist, and was later superceded by ILO Convention 169, the provisions of ILO Convention 107 related to land was considered law by Venezuelan lawyers within the Ministry of Agriculture and IAN . These laws are complementary to those of the Agrarian Reform Law. Article 11 of the Convention sets forth that the collective or individual right of ownership of the areas traditionally occupied by the affected indigenous population must be recognized. In addition, article 12 contemplates compensation in cases of resettlement of indigenous populations due to national security, economic development, and the health of the populations. The lawyers met in the Ministry of Agriculture find the provisions of ILO Convention 107 complementary to those of the Agrarian Reform Law See Conclusiones del Documento Presentado por la Dra. Lucila Clarín, July 1997 (copy given by the Consultoría Jurídica of the Ministry of Agriculture).. A different interpretation could also be made, namely, that the Convention would recognize an existing (ab-original) right to land, different than the one that is granted by the State through the Agrarian Reform Program, and with the limitation thereof. ILO convention 169 is now in Congress and was discussed the week of our mission. Even if ILO Convention 169 is not ratified, the provisions of Convention 107 could prove useful in the development of a policy of land rights and/or compensation if resettlement is required.
· Education Law -- Article 51 sets forth the State’s obligation to pay particular attention to the indigenous peoples and to preserve the socio-cultural traditional values of such communities, by educating and familiarizing them with their obligations and rights.
· Regulations for National Parks and Monuments Reglamento Parcial de la Ley Orgánica para la Ordenación del Territorio sobre Administración) Manejo de Parques Nacionales y Monumentos Naturales. -- Article 35 of such regulations sets forth that in the event that indigenous groups had been residing in the park/natural monument for 50 years or more prior to the establishment of the park or monument, their land ought to be demarcated and titled. Therefore, the community deemed a traditional (autóctona) or tourist community.