2.2.7 Problems Found on the Legalization of Territories

a. Regulations

Territorial self-determination/participation in titularization processes: The previous definition of the territorial aspect must be kept in a well-sustained criterion by peoples themselves. Although it is still not clear which regulations have been attained on this point, most of the legal rulings have been pressured by organizations, be it through strikes, self-demarcation processes, among others, so that the peoples' criteria are considered on territorial legalization processes. In spite of the fact that in a general way our right to territory is recognized, the need of communities and organizations to participate in the study and definition of their territorial demands, few rulings offer clear dispositions on ways to guarantee this participation. And even less the responsibilities of funding the costs of this participation (Roldán, R, 2002).

b. Political Problems

An indemnification of territories, is a mechanism contemplated only on some countries of the region (Colombia, Peru, Brazil and Venezuela). Although some progress has been reached, great limitations are observed in all the countries through these drainage processes, such as the lack of budget and the lack of political decision-making, generally originated under the pressures of power sectors. The most dramatic case of the region on the limitations of the drainage process is that of Bolivia. The titularization process of indigenous lands, conceived as a historic recuperation of original territories in discourses, has ended up becoming, in practice, in a drainage process of the property of third parties taking decisions on indigenous territories on only the part that is left from a territory (Garcia, P., 2002). Therefore, the TCO where one can see the communities, are so distant one from the other, separated by great farming extensions, for which the indigenous territory is thus similar to an archipelago. There are opinions on the fact that in Bolivia, it is not possible to advance on a true recognition of ancestral territories, without the expropriation of great farming properties.

c. Demarcation Procedures

While there are adequate procedures to demonstrate occupation from all kind of third parties, the criteria to verify facts of indigenous possessions are still not so developed and surrounded by cultural prejudice, generated by the lack of understanding of the territorial occupation forms of the Amazon peoples, and only seen from a marketing conception of land and resources (García, P., 2002). In Bolivia, the merchandising criterion seems to be the dominant one at the moment of establishing the territorial needs of several actors.

In fact, possessions must be compatible with the nature of the good and its reason for being or its goal. The goal of the indigenous territories is that of ensuring the historic and cultural existence of its people. The nature of the spaces that they occupy is defined as natural integral habitats. From this point of view, we expect that possession proves of a good, in the case of indigenous territories, should fall over the indications of “cultural control” over a determinate vital space. Something that could only be defined together with indigenous peoples themselves (García, P. 2002).

d. Impacts over Territorial Integrity

The procedures are long, as the following observation carried out by a study of the ILO shows for the case of Peru and it can become extensive to great part of the countries in the region. “The current system of legalization of lands results to be extremely long, loaded with entities and procedures, expensive and harmful for the legitimate aspirations of the communities. These must wait several years for the legalization of their lands and frequently see their expectations being frustrated with negative or wrong resolutions” (ILO, Studies on the fulfillment of indigenous right in Peru).

The few or lacking effective disposition by national governments to grant real territories, designed on the base of a shared diagnostic, is translated into a series of skirmish tactics and bargains that end up with a distortion of the preexisting territorial reality. The end result of processes, commonly leaves much to wonder on and demands indigenous peoples new activities focused not only on ordering and regulating their territories, but, firstly, to rebuild their maps and look over the multiple scars that they have within their territories, so as to carry out the process of official legalization of their properties. At the end of every process, the indigenous peoples are going to have to calmly sit down to look at what the law has done with their territories and, already secured and in times of peace, try to proceed to the re-establishment and rational reconstruction to inherit their generations with configured territories in a coherent manner and with the potential to live within it according to their own options (García, P., 2002).

Many projects aimed at supporting titularization of lands have as their main objective that of consolidating property so as to dynamize a lands market. Sometimes, programs of legalization of indigenous lands subscribe themselves within these types of initiatives that prioritize the m massive regulation of non-indigenous lands, to later consider the distribution of the remaining fiscal lands. These programs can rest many land possibilities to indigenous territories.

In Peru, the PETT claims to have ended the regularization process of some hundred thousand properties. In Bolivia, the titularization of lands passes through a previous regularization of the private property (García, P., 2002).

e. Territorial Control and Violence

The armed conflicts, the occupation of indigenous territories and the severe rights violations in Colombia are problems that deeply affect us. For OPIAC, this is the reason of their current greatest vulnerability level, which affects almost 80% of our territories in the Amazon region, placing at risk not only our territorial integrity, but also life itself. The problems correlated to this occupation, evidenced at the 3rd Congress of the OPIAC (2001) are: the militarization of indigenous areas by armed groups, forming corridors of action within their military strategies. Recruiting children and indigenous youths to become a part of their armed groups; deterritorializing and displacing indigenous peoples as a result of the armed conflict. The fumigations and destructions have produced severe problems and damages to all type of peoples and their communities; governance and the authority within these territories has been lost by the authorities themselves, allowing groups to invade their territories.

The position that we’ve taken, including the OPIAC regarding autonomy, laws and our own systems, is that we are not actors that have caused this conflict, however we aren’t either neutral, we are peoples whose rights must be respected by all actors, without distinction. The dimension of the problem requires great organizational efforts to defend our interests to preserve territories, customs and culture. The defense of these rights, thus, can’t be understood without the strengthening of its organizations and mechanisms of coordination at all levels. International cooperation and NGOs, who act directly with some communities, weakening organizational spaces, do not always understand this issue.