Back to the Basics: Improved Property Rights can Help Save Ecuador's Rainforests

Georgetown International Environmental Law Review, Summer 2004 by Hite, Kristen

In 1964, the year the Homestead Act was promulgated, the first Indian Federation was created by the Shuar Nation in the Amazon to demand government recognition of collective territorial rights.54 Territorial recognition was also a central feature of the National Confederation of Indigenous Nationalities of the Ecuadorian Amazon (CONFENIAE), created in 1972.55 In 1986, the National Indigenous Confederation (CONAIE), which would quickly become a formidable political force, was founded with a primary goal of advancing recognition of indigenous territorial rights.56 Together, these federations helped catalyze widespread governmental reforms in the 1990s, with territorial recognition proving to be a central element in these reforms.57 Any successful reform of Ecuador's property rights system must address these cultural tensions. Until the system addresses these equitable concerns, property rights will continue to have weak force for lack of perceived legitimacy.

In 1992, in a historic march known as "the uprising" ("el levantamiento"), thousands of individuals representing 148 indigenous communities in the Amazon region marched on the capital city.58 The marchers demanded legal recognition of territorial rights, bilingual education, and constitutional reform.59 Altogether, the federations created during the preceding decades helped negotiate the granting of legal title to more than three million acres of homelands to the indigenous communities.60 Titles were bestowed upon the communities, not individuals, and the land could not be sold.61 The political leader of the movement, Luis Macas, asserted, "[w]e in the indigenous communities are people, too, and we have some rights . . . One of those rights is to our own territory. A people without land is a people without history."62 Ecuador's President Rodrigo Borga affirmed that the land grant would allow the communities to "live with the security of having the boundaries of their land known and marked."63 At the same time, the land grant included easements allowing non-indigenous residents already living in the areas to stay, giving the military unrestricted access, and permitting the government to continue oil exploration with the right to the proceeds of any oil discovered.64 Two years following this historic uprising, a national effort to reform the Homestead Act produced the 1994 Agrarian Development Law.65

c. The Agrarian Development Law of 1994: Challenges of Multiple Ownership Systems

The 1994 Agrarian Development Law dramatically impacted land tenure systems. If it is ultimately accepted by the rural indigenous communities, it will nationalize a common system of land titling.66 This law was created largely in response to the previous homestead policies and as an effort to improve equitable distribution of land tenure. While it has improved the security of land tenure to some degree, it also provides for stricter expropriation measures, which can both help and hurt traditional indigenous land management practices. Central to this law is Article 38, which guarantees that the State will recognize and legalize indigenous lands free of charge, giving indigenous occupants title to the land.67 While this is an important change from the 1964 Homestead Act, it requires that the indigenous owners accept the western system of individual property rights, but not all communities have been amenable to such a dramatic change in their historical communal land management practices, which went without title for centuries. CONAIE, now the largest indigenous political group in Ecuador, continues to criticize the government's colonization policy in the Amazon for ignoring indigenous territorial rights based on thousands of years of habitation.68