Puerto Franco case: after several postponements, the Mixed Court of Juanjuí holds a key hearing in the Kichwa community's case against the exclusionary conservation model of the Cordillera Azul National Park

And he was not the only one to take this line. Moisés Martínez, lawyer for the Asociación Frente de Defensa de los Caseríos de Alto Biavo, insisted that the process is artificial and based on a "distortion": "There is a contradiction between the plaintiffs' maps. The judge generates the number of hectares, but Puerto Franco does not ask for this in its lawsuit. Only titling. The judge has made an extra petita". He also argued that communal property cannot be "above the Constitution" and that amparo proceedings are not the right way to go.

The interventions from the state were convergent. María Mercado, lawyer for the Ministry of Agrarian Development and Irrigation (MIDAGRI), pointed out that the process does not demonstrate urgency or suitability for the amparo procedure. Luis Wellington del Águila, lawyer for the Regional Government of San Martín, indicated that it was the community itself that withdrew from the titling process initiated by the Regional Directorate of Agriculture of San Martin (DRASAM), and that the size of the territory had not been proven. He cited a study according to which the area used by th community was only 11,000 hectares - not the 118,000 hectares indicated by the judge - and criticised the lack of a proportionality test in the first instance ruling.

For her part, Liliana Vásquez, lawyer for SERNANP, argued that the ruling ignores the "block of environmental constitutionality" and that "there is no overlap between the territory of Puerto Franco and the PNCAZ". She assured that the community comes from another area, located 70 kilometres to the north, and questioned the objectivity of the anthropological report that supports the lawsuit. "It has been overstated by the judge of first instance," she said. 

Erick Pajares, lawyer for the Centro de Conservación, Investigación y Manejo de Áreas Naturales (CIMA), the NGO that administers the PNCAZ, reiterated the discourse of the environmental threat. "We are concerned about the right to the environment. There are 500 population centres in the buffer zone of the PNCAZ and 350,000 citizens living there. Human rights are not the patrimony of one sector of the population. They belong to everyone," he said, minimising Indigenous territorial rights. He added that "the anthropological expert opinion suffers from serious inconsistencies" and accused Forest Peoples Programme (FPP) of deploying a "false narrative" to discredit the REDD+ project and the PNCAZ model. "International environmental protection treaties are of equal relevance to the ILO Convention 169," he concluded.

On the other hand, Gustavo Montoya, head of the PNCAZ, maintained that Puerto Franco has participated in park processes, such as the master plan, and that its existence as an ancestral community was never reported before. "If there had been any vestige of ancestral use, the PNCAZ would not have existed," he said.

"We are not asking for favours. We are asking for what belongs to us".

In the face of all this, the defence of the community replied clearly. Cristina Gavancho León, lawyer for Puerto Franco, pointed out that "the controversy is whether the state has fulfilled its obligations in terms of consultation" and that the community had to carry out its own demarcation due to the state's omission, which is why there is an inaccuracy in the number of hectares that make up the area of their territory. "The evidence presented by SERNANP itself proves us right: it proves that Puerto Franco has been there for decades," she said. The lawyer also questioned the attempt to discredit the Indigenous claim as if it were a privilege, clarifying that each claim in the lawsuit is part of the essential content of the right to communal property as defined by the Inter-American Court of Human Rights, in paragraph 117 of the Xúcuru v. Brazil case.

Likewise, in response to the questioning of the alleged withdrawal of the community from its own titling process by the DRASAM, the lawyer clarified that this happened because the diagnosis identified that 100% of the community's territory had already been handed over to third parties, the PNCAZ and two forestry concessions, as highlighted by the GORESAM's own technical body. Furthermore, Gavancho León recalled that fundamental rights cannot be waived.

Juan Carlos Ruiz Molleda, CEPKA's lawyer, recalled that Peru’s Constitutional Court has already established that article 66 of the Constitution - referring to natural resources - must be harmonised with article 14 of ILO Convention 169 on Indigenous territories. "The protection of the environment must be harmonised with the rights of Indigenous peoples," he said. In addition, he clarified why the amparo procedure is the appropriate route for Indigenous peoples' territorial issues, an issue that has already been settled by the country's Constitutional Court.

"They say we are not indigenous. I am 60 years old and have lived there. The founders are the Isuiza, Atalaya and Fasabi families. They are my ancestors. Children, grandchildren and sons-in-law. We are not asking for any favours. We are asking for what belongs to us," Alpino Fasabi, plaintiff and ex-apu of Puerto Franco, told the Chamber. In this way, he cleared up any doubts that might try to deny the territoriality of the families of the community with their territory, as well as putting to rest the discussion of who was there first, before the arrival of the Park and logging concessions.

Marco Sangama, a member of the Kichwa Indigenous people and representative of CEPKA, also gave his testimony: "They say that we are not Indigenous. In 2016, a university carried out studies and it shows that the current inhabitants have always been here. The names are in Quechua. The name of the city where this hall is located, Juanjuí, comes from an Indigenous language. They say that we have generated a discourse; yes, we have, because you are not transparent. While we question exploitation, you make deals with these companies