“Before asking permission from someone or from any institution, we always ask permission from the forest. That is, we had to smoke ‘mapacho’ [tobacco] in order to be able to go into the mountain, because the mountain has souls; sometimes we have to ask permission by smoking mapacho so nothing will happen to us. Only then can we go in.” (Manuel Amasifuen Sangama, age 50)
For Manuel Amasifuen Sangama, the ‘apu’ [chief] of the Kichwa community of Alto Pucallpillo in the northern Peruvian Amazon, the forest is a shared space. Accessing it entails respecting the territory’s protective beings – beings that keep watch over all those who enter the space.
Nonetheless, in 2009, eight members of his community were prosecuted by the Área de Conservación Regional Cordillera Escalera [Regional Conservation Area- Cordillera Escalera ] (ACR-CE) for possession of ‘chacras’ [small farms] within the area. After a tortuous one-year process, they were exonerated; however, since then no one has entered the forest for fear of prosecution. As a result, the people say that nowadays 18-year-old young men in Alto Pucallpillo do not know how to hunt, do not prepare their bodies, nor do they know the forest.
Custodio, the former apu of the native community of Mishki Yakillu, is the heir to a Kichwa lineage. His parents and grandparents have lived and grown up in the community since 1956. Throughout that time, he has learned how to use the forest [and] how to hunt animals to ensure that there are not only enough for his family, but also a surplus to share with others.
This Kichwa community just like Alto Pucallpillo, does not, however, enjoy the rights to use, access, or own this area, as their territories have not been titled. Despite the obligations of the Peruvian State to legally recognise the traditional territories of indigenous Amazonian peoples, the titling process that began in the 1970s remains unfinished with 1,300 communities and nearly 20 million hectares outstanding. In recent years, as a result of the Peruvian government’s climate-related commitments, a variety of land titling projects have been approved, including in the region of San Martín. Nonetheless, none of these communities have been approved for inclusion on the community titling list, in light of the fact that their lands are overlapped by the protected area.
In 2016, a Kichwa community named Nuevo Lamas, whose homes and chacras were overlapped by the ACR-CE, received a land title. However, barely 1 per cent, (31 hectares of the 1,650 hectares of the land) was titled in the name of their community. In the rest of the territory, a leasehold agreement [‘contrato de cesión en uso’], was put in place, a modality used by the government to retain the area under State ownership, while only granting use and access rights to the community. Given that it is a contract, the rights can be lost, for example through non-compliance with the contract conditions. As the people of Nuevo Lamas say, “The 30 hectares are not sufficient for our 19 families; it does not allow us to give the soil the rest it needs [fallow period].” For the people of Mishki Yakillu and Alto Pucallpillo, the situation is worse because they are not even permitted an a leasehold agreement because the space they identify as their own is not a place with a permanent settlement.
The three communities belong to the indigenous Kichwa people and live in their ancestral territory in the northern Peruvian Amazon. Mishkiyakillo and Alto Pucalpillo have been prohibited from using their ancestral territory since 2009. It was in this year, that the Peruvian government determined that the territories where the Shapingos [the Kichwa name for the mountain spirits] rest may no longer be used as had been done ancestrally by the descendants of ‘the wise ones’, of the grandparents, nor by future generations. This year, and without the free, prior, and informed consent of the Kichwa, their territory was classified by the regional government of San Martín as the Regional Conservation Area - Cordillera Escalera.
Today, the law supports the Kichwa communities’ demands, according to multiple regulatory frameworks, both national as well as international. At the national level, the State has an obligation to recognise the rights of campesino and native communities to the lands they possess within Protected Areas. In addition, the Regulations of the law of Natural Protected Areas] itself notes that not only should the preexisting right of the communities be recognised, but that Protected Areas should only be established if they [the communities in question] have given their explicit consent. At the international level [is] ILO Convention 169, whose constitutional ranking obliges the State to ‘recognise the right of the peoples concerned to the ownership and possession of the lands they traditionally occupy’ (Article 14.2). In 2004, the Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) decided that ‘the establishment, management, and monitoring of protected areas should take place with the full and effective participation of indigenous and local communities.’ (this was an original quote so it was poor practice just to provide her own translation) This decision is legally binding on the States Parties of the CBD. In general, international jurisprudence on this matter is clear, and requires States to ensure the effective participation of indigenous peoples and [the need] to obtain their free, prior, and informed consent prior to the establishment and management of protected areas as well as creating mechanisms for equitable benefit sharing.
Nonetheless, in this case we focus on Kichwa common law, which they are unable to uphold because they are unable to access their territory as had their ancestors.
Losing lessons for life
Alto Pucallpillo is a native community that was recognised in 2011 in accordance with Peruvian law. It has approximately 45 families, with a population nearing 200 residents. Following the criminal proceedings against them for using the land, they were ultimately exonerated because they did not know about the new categorisation of their territory. However, the justice system did not recognise them as owners of this space, nor were they financially compensated for the destruction of their chacras by the park guards.
Manuel notes that, in order to go to the forest to hunt, their ancestors would perform a seven-month ‘cleanse’ or ‘purge’, meaning they would not: eat meat, have sex, drink, smoke, permit the sun’s rays to fall on them, or consume salt, ají [hot pepper], or coffee. During this period, they had to consume plant named ‘sanango’ which cleansed them and nourish themselves with vegetables, fruits, and nuts. This ‘cleanse’ is no longer practiced. Manuel is 45 years old and his generation is the last to perform such cleansing:
“. . . That is, the purges are good as long as no one sees them. Few people come to that territory, and you find purges that are good and cure you, and it is very easy to hunt animals. Bear in mind that the animals do not smell or see you, [so] it’s as if no one were there.’ (Manuel Amasifuen, age 50)
The first time Gerardo Amasifuen went to the forest he was 10 years old and went to help his father. He served as the ‘’carrier’ and had to carry part of the prey. Gerardo, like many children of his generation, participated with the adults during the hunt, learning that one must not shoot a pregnant female or her young because that represents a ‘loss of one’s bullet.’ Gerardo began going into the forest alone at age 16, in order to test his skill. He has an eight-year-old son but as he has been denounced by the Regional Conservation Area (ACR) his son does not know the forest.
Those who are becoming men do not know the teachings about hunting provided by the forest, while in Mishkiyakillo, the elderly can no longer ‘protect their age,’ explains Custodio, the community’s former apu, referring to the ‘nodillo,’ a plant that prevents the symptoms of age, and which grows only in the protected area:
“It is a strong diet and one must be a real [‘macho’] to drink that purgative. My father and uncles drink that and now at the age of 85, they have no [physical] pains. The grandfathers would drink this purgative every six months. They are strong and have experienced no pain to date. To this day, they go fight in the carnival. . . . It is a challenge to their strength.” (Custodio Guerra, age 50)
Going into the forest entails a learning process about forest strategies and uses. It takes between 10 and 16 years to learn. One must think about performing a cleanse beforehand in order to ensure the effectiveness of the activity. Not everyone submits to this process, because not everyone has the strength to do so.
The people of Mishkiyakillo learned that they were no longer able to enter their territory when they were warned not to enter without a governmental permit. Since then they have applied for and received annual permits to conduct patrols of their territory every three months in groups of seven people. Every time they make these patrols they must be accompanied by at least one park guard who will draft a report on what transpired.
The permits are issued after eight business days and must be physically issued in the city of Tarapoto. The city is one-and-a-half hours’ drive away and two hours if done partly by foot, and the trip costs approximately 10 US Dollars. This situation is disturbing to the community members, given the expense it entails and the bureaucracy they must navigate.
Each permit indicates how many and which animals they can hunt. In August 2016, the community was threatened with legal proceedings by the ACR for having felled a palm tree on their own ‘purma’ [cultivated area which is then allowed to fallow] in order to make a thatched hut.
And in Alto Pucallpillo, it is not only indigenous people who make use of the space, but also the mestizos, who hunt animals and sell them in neighboring markets, such as Tarapoto or Yurimaguas. Community members ask themselves how it is possible for this activity to continue while they are prohibited from consuming these animals for subsistence. [The community of] Alto Pucallpillo has not gone to the territory for eight years for fear of suffering reprisals, nor are they motivated to apply for permits due to the bureaucracy.
The forest as a storehouse
The forest represents a storehouse for Mishkiyakillo and Alto Pucallpillo. They would supply themselves with salt for festivals, eat meat every two months, gather medicinal plants to treat ailments and prevention, and they would teach their children how to do this all in the correct manner..
For the community members of Nuevo Lamas, all of whom come from Lamas and resettled in the area in 1980, hunting is also undertaken for subsistence reasons:
“But I say to you, we do not hunt as a business, [instead] it is for our daily needs. And it is never a lot. Maybe it’s like chickens, that you kill three or four of them? . . . And we also know which month the animals are pregnant and that is when we do not go hunting. I always tell them that, because we always know the dates on which we are allowed to hunt animals.” (Miguel Ishuiza, age 50)
Despite the fact that the three communities are Kechwa, they do not use the territory in the same manner because it does not have the same features throughout. Logic prevails. One does not force the territory to do something for which it is not suitable, according to the teachings of the ancients.
In the case of Mishki Yakillu, their traditional area is mountainous. Chacras cannot be maintained and so it was used for gathering medicinal plants, hunting animals, and gathering salt. In the case of Alto Pucallpillo, the soil was good for establishing chacras; that is, less than a hectare on which foodstuffs were grown for the men and women who would come to the territory, in order to not carry any cargo during the 45-minute walk from their village. At the same time it also serves as a place for feeding the animals that pass through: they eat bananas/plantains which they ‘turn over,’ thereby helping in planting by dispersing the seeds. The community’s land is not as good as that in the territory. Sanango does not grow there so cleanses are not performed for hunting purposes. Pablo Salas Sangama is 30 years old and Custodio Guerra Sangama is 50, and they are the current and outgoing ‘apus’ of Mishki Yakillu, respectively. Both of these generations have seen changes and continuity in their culture. A part of these changes has been the end of cleanses performed for hunting: and while sanango grows throughout the community, it is not necessary to take it because people do not go into the forest close to the animals live who should not smell one’s ‘vices.’ Pablo has never taken sanango and currently, neither does Custodio.
The majority of Nuevo Lamas’ territory, measuring 1,600 hectares, is classified as being suitable for agriculture; however, the leashold agreement allows them to work the three- and four-year-old ‘purmas,’ following debates held with those responsible for administering the Regional Conservation Area. A purma is the local name for land used for cultivation then allowed to return to fallow in order to regenerate:
“We have to continue working the land, we [need to] continue to work the land for the children’s food. Thank God we have fought for it and are working on solid fallows, solid fallows.” (Miguel Ishuiza, age 50)
The plants that exist in the forest can no longer be harvested, nor can the salt in the mine be collected for eating. They even say that it [salt] cures and prevents a range of diseases. The purgatives cannot be gathered; and so people are not preparing the plants and knowledge is being lost.
Many factors influence change in Kichwa life, such as Western modernity, the new needs that present themselves, [and] the proximity of mestizo towns, among others. However, through depriving people of rights to their territories for many years, little by little people become separated from their own territory. Even so, with the creation of the ACR in 2009 and prohibition or restriction of their entry into their own territory, the Peruvian State has unleashed a series of impacts on indigenous Kichwa culture. This is about the gradual loss of their rights and way of life. This makes it so that the lessons that are learned cannot continue to be inherited, the bodies are weaker and weaker, and, the paths are being forgotten by entire communities and with them, part of their history.
In July of this year, the community of Nuevo Lamas (with the support of its federation, Consejo Étnico de los Pueblos Kichwa de la Amazonía [Ethnic Council of the Kichwa Peoples of the Amazon], or CEPKA), tired of the restrictions and lack of political will to recognise their territories for more than 40 years, filed a lawsuit to a constitutional court to attempt to gain full title to their territories and to ensure resepct of their rights to consultaton prior to the creation of the ACR. The lawsuit questions the legality of the leashold agreement’ that was used for recognising their territory, and which has served as a model in Peru where it has been widely questioned by the indigenous movement.
“For whom shall we wait? Here we are the only ones to decide. Who else? If we do not do this, how long will we wait like this? Here we are adults, the rest are the youth here, so for whom shall we wait? We have to file this lawsuit.” (Miguel Ishuiza, age 50)
Miguel recognises the benefits of finding himself within the ACR-CE, including through the improvement in the Putayakillo waterfall, the construction of the community centre and the potential availability of funds for investing in training and community improvements. Nonetheless, these benefits have been acquired [only] after negotiations, just as all of their rights.
Currently, the regional government is aware of the lawsuit. As a result representatives of GORESAM announced their intention to fire the president of CEPKA who worked as an employee of the local authority and cancel the land titling program in the region that is financed by the Inter-American Development Bank, Norwegian government, and Forest Investment Program of the World Bank.
Despite the threats, the three communities maintain hope in the legal process:
“Our idea is to have it as a communal area for ourselves. It holds great importance, perhaps we want it for our children, so that they can come to know its mountains and animals because previously our grandparents lived off it.” (Pablo Salas Sangama, age 30, Mishki Yakillu)