United Nations advises Constitutional Tribunal to respect indigenous land rights in the case of Santa Clara de Uchunya

Tierra arrasada Santa Clara de Uchunya enero 2018 credito Carlos Hoyos

Tierra arrasada Santa Clara de Uchunya enero 2018 credito Carlos Hoyos

United Nations advises Constitutional Tribunal to respect indigenous land rights in the case of Santa Clara de Uchunya

Geneva, October 2019* The UN Special Rapporteur on the Rights of Indigenous Peoples, Vicky Tauli-Corpuz, has provided Peru's Constitutional Tribunal with an expert legal briefing [1], or amicus curiae [2] on the high profile case of Santa Clara de Uchunya. This Shipibo-Konibo community have been seeking legal recognition of their traditional lands for several years in the face of a land grab by oil palm developers.

Tauli-Corpuz's intervention comes at a critical point in this case as the judges are finalising their resolution following a hearing on 25 September 2019. The case itself is highly emblematic of a problem found throughout the Peruvian Amazon: the government routinely makes untitled, indigenous lands available for extractive industries including logging, mining and oil and gas, as well as agri-business operations.

The objective of the amicus was to '"respectfully provide the judges with international standards relevant to the rights of indigenous peoples' including 'important obligations derived from the conventions and other international human rights instruments ratified by or adhered to by the Peruvian state which must be considered in relation to the rights of indigenous peoples over their lands, territories and resources specifically including the ones which I would like to highlight; the responsibility of States to recognise and protect indigenous territories, to adopt measures to protect these territories from the actions of Third Parties who seek to threaten their integrity; to adopt measures of compensation and redress in the case of impacts on the territories, resources and environment of indigenous peoples..." (author's translation).

In addition to the well-known provisions of ILO Convention 169 and those of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the UN amicus curiae refers extensively to the judgments of the Inter-American Court on Human Rights (IACHR). "This jurisprudence has underlined the obligation under the American convention to recognise the collective property rights of indigenous peoples on the basis of their traditional occupation which has the equivalent effect of a full legal title issued by a State and grants the rights to demand the recognition and registry of indigenous property. The Court has emphasised that the recognition of indigenous property brings with it the obligation to delimit, demarcate and title indigenous peoples' traditional territories in accordance with customary rights and their values, uses and customs. Until these lands have not been delimited, demarcated and titled agents of the State or Third Parties who act with their acquiescence and tolerance should abstain from any actions which could effect the existence, value, use and enjoyment of these communal indigenous lands." (authors translation).

The applicability of this jurisprudence was also made by another amicus curiae prepared by the Global Justice Centre of New York and Forest Peoples Programme. This was submitted in October 2018 to the Court to aid them in their deliberations. Significantly, both amici highlight the above obligation of the Peruvian government to refrain from issuing any land or resource rights which might affect indigenous land rights until the titling of indigenous lands has been completed. This measure, if implemented, would constitute a de facto safeguard of indigenous lands whilst land titling processes in the Peruvian Amazon continue to remain flawed, delayed or simply pending. Despite the demands of indigenous peoples’ organisations and allies for the implementation of such a safeguard, to date the Peruvian government has made no moves to implement this measure. Instead, it continues to promote and facilitate the overlap of indigenous lands - including those of Santa Clara de Uchunya - with third party interests.

Tauli-Corpuz also highlighted the findings and recommendations of her predecessor in an official report in 2014. This noted the "continued absence of land titles for many communities and the lack of adequate and standardised procedures which contribute to these delays."

The amicus ends by inviting the judges to consider the emblematic status of this case and the important jurisprudence at national and regional level it could establish.

 

Notes:

*The letter was formally sent to the Court on 3rd October but was only recently made public by the OHCHR.

In May 2016 the community filed a lawsuit against Peru’s government for failure to safeguard their traditional but untitled lands. The suit also challenged the oil palm developers (Ocho Sur P – ex Plantaciones de Pucallpa) for failure to respect these land rights and the community’s rights to determine its future as well as the conversion of over 7000 hectares of forest to oil palm and the associated ecological destruction. The case made history in August 2018 when it was finally admitted by the Constitutional Tribunal, Peru’s highest constitutional court.

Click here for further information on the case.

[1] Spanish only

[2] An amicus curiae (Latin 'a friend of the court') is a legal brief submitted by a person or group who is not a party to an action, but has a strong interest in the matter, will submit a brief in the action with the intent of influencing the court's decision.