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The Kichwa Community Demands Justice For Violation Of Territorial Rights

Above photo: Community members of Puerto Franco continue fighting to recover their ancestral territory, affected by the Cordillera Azul National Park. Puerto Franco, 2022. Matias Perez Ojeda del Arco / FPP.

A public hearing was held for the writ of amparo lawsuit filed by the Puerto Franco Kichwa community.

They sued the Peruvian State and the Cordillera Azul National Park (PNCAZ) for failing to title their traditional lands, the imposition of an exclusionary conservation model and the generation of profits from the sale of carbon credits without their consent, in the San Martin region of the Peruvian Amazon.

On 22 March, a public hearing was held as part of the amparo process that has been going on before the Mixed Court of Bellavista since 2020, brought forward by the Indigenous Kichwa community of Puerto Franco and the Ethnic Council of the Kichwa Peoples of the Amazon (CEPKA).

The lawsuit is against the Ministry of Environment (MINAM), the Ministry of Agrarian Development and Irrigation (MIDAGRI), the Regional Agrarian Directorate of the Regional Government of San Martin and the National Service of Natural Areas Protected by the State (SERNANP).

In their participation in the hearing, the legal defense of the Puerto Franco community and CEPKA recalled the reasons for the lawsuit:

  • The omission of titling of the ancestral communal territory by the Regional Government of San Martin (GORESAM), leading to dispossession and non-compliance with their rights.
  • The lack of consultation regarding the creation of a natural protected area such as the PNCAZ, since it was created on 21 May 2001, without the consent of the Kichwa communities and other Indigenous peoples whose territories it overlaps. Furthermore, that it was created in violation of Peru’s obligations under Convention 169 of the International Labor Organization (ILO), which Peru ratified in 1994, as well as in light of the clarification of the Constitutional Tribunal, the highest instance of constitutional justice in Peru, on the requirement of consultation, articulated in ground 23 of its judgment STC N°00025-2009-PI.
  • Because the National Forestry and Wildlife Service (SERFOR) created, approved and established Permanent Production Forests (BPP) within the territory traditionally occupied by the Puerto Franco native community.
  • The issuance of forest concessions by the Regional Environmental Authority of the GORESAM within Puerto Franco’s territory.
  • Non-compliance with the right of the native communities over which the PNCAZ overlaps to benefit from conservation activities in their territories, in accordance with Article 15.2 of ILO Convention 169.

They also recalled the rights of the Indigenous peoples that had been violated, including the right to ownership of their ancestral territory, to free, prior and informed consultation and the right to consent, to not be dispossessed of their territories based on ignorance of the laws, and to benefit from conservation activities in their territories.

On the side of the defendants, MIDAGRI stated that, instead of an amparo process, the administrative litigation process was more appropriate, and that the plaintiffs had not demonstrated that they had an ongoing territorial process before the authorities of San Martin to request the resizing of BPPs. Furthermore, there was no urgency in the case of Puerto Franco.

SERNANP and MINAM insisted that the lawsuit had been filed 20 years after the creation of the Park and that the community had only been recognized in 2016.

Unfortunately, this is a temporal and erroneous interpretation of the reality on the ground and the historical lethargy of the Peruvian State in fulfilling its obligations to recognize and title native communities. This can even be proved by reviewing the “Technical file for the definitive categorization and delimitation of the Biabo-Cordillera Azul Reserved Zone as Cordillera Azul National Park,” dated May 2001, where after a poor social diagnosis, only one Kichwa community was identified in the PNCAZ’s area of influence, using the social criteria of recognized/titled native communities as of that date.

In addition, SERNANP noted that they propose participatory management of the PNCAZ, and that the civil community participates in the Management Committee that participates in the management of the natural areas.

The representatives of the forestry concession mentioned that they carry out their activities in accordance with the Peruvian forestry regime, and that the lawsuit should be declared unfounded because the concession does not own the forest.

The Center for Conservation, Research and Management of Natural Areas (CIMA), which currently manages the PNCAZ, reiterated that only in 2016 did the native community present its request for recognition, questioning the ancestral nature of its territory and even the Kichwa origins of the names and surnames on the list of community members. In addition, they claimed that the PNCAZ has no deforestation and that there have not been any areas of purmas (forest fallows) or interventions within the PNCAZ.

GORESAM did not appear at the hearing.

The legal position of the defendants was roundly questioned by the Puerto Franco community and its representative organization CEPKA in its factual report:

“Puerto Franco has existed since 1970, on 20 August; the PNCAZ was created in 2001 and the forestry concession in 2003 – which is older? They have dispossessed us of our territory, they have deceived us saying that we are going to work together, they have taken advantage of lack of knowledge, ignorance (…) We are truly indignant when they abuse our ignorance or the fact that we are Indigenous. You, Madam Magistrate, should know the laws and the norms, are they the ones with priority? (…) We will continue the struggle, because we are not new. The Indigenous people have existed for a long time, perhaps not with a resolution, because we never thought we would reach this impasse (…)”, said Alpino Fasabi, former chief of the Puerto Franco community.

“A little upset and indignant on the part of the lawyers and officials who have presented. We as CEPKA have been fighting for our communities for their titling. A community without its territory is not a community and this must be legally secured. Puerto Franco has existed not only since 2001 – we are talking about many years ago (…) The State cannot take away an ancestral territory. It turns out that the Park is the owner at this moment. For us it is indignation, it is anger, that they tell us that we are neighbours. We are the ones bordering on their area? No. They have superimposed themselves on the community’s area. Never say “neighbours”; you have arrived later. That is the annoyance. And they tell us that there are no Kichwas. There are brothers who speak their language perfectly well. It is as if I were to say to you, madam magistrate, that you are not a magistrate, it would bother you, madam judge. We are not second-class citizens. We ask that this lawsuit be declared founded,” Reogildo Amasifuén, president of CEPKA.

Meanwhile, the legal defense of the complainants also questioned the grounds used by the defendant. Juan Carlos Ruíz Molleda, an IDL lawyer representing CEPKA, mentioned that it was absolutely false and extremely dangerous to say that they have only been Indigenous peoples since 2016 and gave the following reasons:

  1. To be considered an Indigenous people it is enough to accredit that they meet the three requirements of Article 1.1.b of ILO Convention 169: descend from an original people, preserve all or parts of their customs. That alone is enough. And even the same norm says, “whatever their legal status”.
  2. Item 6.5 of the Indigenous Peoples Database Directive of the Ministry of Culture approved by Ministerial Resolution No 202-2012-MC, specifies that recognition as Indigenous peoples by the State is not constitutive but declarative. That is, the State does not create the condition of indigenous peoples, but recognizes a pre-existing reality.
  3. But, in addition, Article 89 of the Constitution is very clear. The native communities have legal existence and juridical personality by their mere existence. And their legal existence and juridical personality does not depend on the registry. This has been reiterated by STC No 04611-2007-PA (ground 27).

Finally, Cristina Gavancho, IDL attorney representing Puerto Franco, questioned the defendants’ interventions:

“None of the institutions summoned has supported, has detailed in a concrete way if they have complied with titling and delimiting the territories, or if taking into account that prior consultation was in force and mandatory, that they have complied with any act to consult on the creation of the area, its management documents and forest concessions. They support biased positions, despite the fact that the lawsuit includes an anthropological report that details the use zones within the Park and determines which areas have been taken from the Limoncillo, Almendro, and Yanayacu streams (…) It is unacceptable that, despite the fact that the 2003 Durban Protected Areas Congress recognised the territorial rights of Indigenous peoples to their forests, they are supposedly the ones who destroy and do not have the right to conserve them. This is an outdated position and it is only the Peruvian State and the institutions present here that are resisting. It is unacceptable and rude and everyone here who has tried to question their status as Indigenous people should be called out, as we could even say this is an act of discrimination,” said Cristina Gavancho.

The Mixed Court of Bellavista has ten days to issue its sentence, in accordance with article 12 of the Constitutional Procedural Code. It must either align itself with the new conservation paradigm imposed by the imperative of respect for human rights, especially those of Indigenous peoples, or allow the perpetuation of an exclusionary and racist conservation model contrary to the standards of the universal human rights system. The Kichwa of San Martin in Peru, and many other Indigenous peoples around the world who have been violated by these mechanisms of structural dispossession, remain attentive to this future ruling, which could be historic for those who propose a new social contract for the conservation of biodiversity and a struggle against climate change with respect for Indigenous rights.

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