2.2.2 Contradictions with Predominant Viewpoints found in Regulations and Policies of States
The multidimensional and integral viewpoint of territory is not easily understood. As opposed to what we believe, the present viewpoint of National States confronts our concept of territory by stating that land is a good exclusively produced and subject to private or collective property, but ruled by a civilian regime. It means, that it is a transferable good, that taxable and of acquisitive prescription from domain.
Moreover, through the acknowledgement of rights within constitutions and through ILO’s 169 Agreement, in most of the countries of the region, this viewpoint was overcome, granting indigenous lands the character of inembargable, inalienable and imprescribable; there are still various aspect of the right to territory that keep on being controversial and have not reached yet the recognition by most Nation States and to some extent, also at the international level.
The State reserves its rights over goods that form an integral part of territory: underground lands, non renewable resources, in some cases forest resources, fauna, lagoons, rivers, applying differenced legal regimes to the different components of nature. Therefore, a legal disintegration of territories is produced, which does not only difficult its control and development, but it also is the cause of the greatest conflicts that are being bared, even by those who have obtained legal acknowledgement of lands, provoking a great vulnerability for the life conditions of present and future generations of the peoples.
Two additional crucial issues are part of the disagreements found with these notions of the States in several countries of the region, which weaken severely the exercise to the right to territory. The legal fragmentation of indigenous peoples and the limits of the exercise to the self authority for the control and the territorial government, in spite of certain constitutional progresses, place us in diverse ways of legal recognition (native communities in Peru, in Ecuador, centers, associations, communes), a fact that difficults the right to territory as peoples. Concerning the competences of our own authorities for territorial development, more emphasis is placed on the need for territories to be managed, rather than governed.
