The Kichwa people of San Martin one step closer to definitively recovering ancestral territory, after dispossession by protected áreas

The Kichwa people participated in a historic second instance hearing in the hope that the Civil Court of Tarapoto will confirm the sentence that recognises the State's duty to demarcate their territories within protected areas, reaffirming that there is no contradiction between environmental conservation and Indigenous territorial rights.

Last Thursday 3 July 2025, the Civil Court of Tarapoto heard the case in the compliance process initiated by organisations of the Kichwa people against the Ministry of Agrarian Development and Irrigation (MIDAGRI), the Regional Directorate of Agriculture of the Regional Government of San Martin (DRASAM), the Ministry of the Environment (MINAM), the Ministry of Agriculture of the Regional Government of San Martin (DRASAM) and the Ministry of Environment (MINAM), the National Service of Natural Protected Areas (SERNANP) and other state entities, demanding that they comply with the demarcation of the Kichwa territories that suffered dispossession due to the overlapping of natural protected areas (PAs), such as the Cordillera Azul National Park (PNCAZ) and the Cordillera Escalera Regional Conservation Area (ACR-CE).

The legal action was brought in 2023 by the Ethnic Council of the Kichwa Peoples of Amazonia (CEPKA), the Federation of Indigenous Kichwa Peoples of Chazuta, Amazonia (FEPIKECHA) and the Federation of Indigenous Kichwa Peoples of Bajo Huallaga San Martin (FEPIKBHSAM), together with their regional base, the Coordinating Committee for the Development and Defence of the Indigenous Peoples of the San Martín Region (CODEPISAM), after many years of trying to achieve demarcation in spaces for dialogue with the State, such as the San Martín Region Titling Roundtable and the Cordillera Azul National Park Technical Roundtable, in which they only received refusals.

In May 2025, the Kichwa people celebrated a historic victory by winning in the first instance in the process, with the sentence issued by the Second Civil Court of Tarapoto, which ordered the demarcation of the territories overlapped by the PNCAZ and the ACR-CE and recognised the State's duty to demarcate Indigenous territories within the PAs, reaffirming that there is no contradiction between environmental conservation and the recognition of Indigenous territorial rights.

"It is frustrating and painful to be told that we have to prove our ancestry or that we are here for our own individual interests. We are tired of proving that we are a living culture. Before we are professionals, we are human beings. Indigenous people do not need to deforest to demonstrate ancestral possession. We live a social injustice because we have been dispossessed (...) there are wooden poles from old houses within the protected areas, the names of sites within the protected areas are Kichwa. Ankash yaku, Kuriyacu What else? The fact that we were not recognised as communities at the time is not our fault. How many more years do we have to demonstrate? We are not begging for justice". -Marisol García, President of FEPIKECHA.

State arguments: denial and colonialism

During yesterday's hearing, the State's arguments bordered on the implausible and colonial, inconsistent with a conservation that boasts of being supposedly "inclusive".

For its part, the MIDAGRI attorney argued that the demarcation was not within the competence of MIDAGRI, but of the regional governments, and that the procedural rules for this type of process had not been complied with.

Likewise, MINAM's attorney argued that it was legally impossible to rank a Ministerial Resolution above constitutional law and other norms of the environmental sector. The lawyer, however, forgot that the plaintiffs are holistically demanding compliance with article 89 of the Peruvian Constitution and article 14 of ILO Convention 169 - and not only RM 136 - which in the opinion of the judge of first instance are not incompatible, in light of what is established in Peru’s own Law of Natural Protected Areas and its regulations.

They also pointed out that there was no evidence of overlapping territories with PAs, and that the Cordillera Azul National Park was created with a good technical file that did not identify any occupation by native communities. However, they omitted to point out that at the time of the creation of the Park, there was only one recognised and titled community, which was not the responsibility of the Kichwa people, as it was the State that did not do its job of regularising rural property and recognising them in a timely manner, denying the historical presence of the Kichwa.

On the other hand, the GORESAM attorney, in a discriminatory manner, criticised the fact that there was no report proving the "supposed" ancestry of the claimants in the process. Meanwhile, the technical defence of the DRASAM justified the fact that there were communities that had already signed boundary agreements with the PAs, even though they recognised that their institution had received refusals to demarcate from the ACR-CE and SERNANP. They forgot, however, and somewhat cruelly, that the communities had decided to move forward with the process of demarcation of at least part of their territory in their historical struggle for restitution, before third parties invaded them with the consent of the State itself, but never renouncing the rest of their territory that is overlapped by PAs.

"In 1997, Mushuck Llakta was titled in the Lower Huallaga, in the district of Chazuta. Only Mushuck Llakta was titled. The Park was created in 2001 and the ACR-CE in 2005. Does the Attorney General's Office say that in a file no living people were found in the protected areas? I am 42 years old. In 2014 my grandfather Humberto Pinedo passed away at the age of 106. Is your technical interpretation so much to discredit our existence there? We are a living culture in the Lower Huallaga and we don't need them to make studies or comment on a poorly done dossier. There is a reason why, in order for them to recognise communities, they have carried out anthropological studies and have found that there are ancestral families. That is why they have recognised us, not that we have only recently existed as a people in that place (...) Since the ACR-CE was created, we have been fighting. They did not get there before us; we were already living there. We have always said that the PAs are not our neighbours. Administratively they have imposed a border on us and forced us to accept this border, which internally and spiritually we will never accept. For us, our borders end where our grandparents walked. We are going to fight this struggle. - Apu Samuel Pinedo, President of FEPIKBHSAM.

The Kichwa struggle has legal support and a living memory

In response to this, Cristina Gavancho, lawyer for the plaintiffs, referred to the recent Advisory Opinion 32/2025 of the Inter-American Court of Human Rights on “Climate Emergency and Human Rights”, which establishes that the protection of nature should not be carried out without Indigenous peoples, highlighting their compatibility. She also remarked that there is no impediment to the registration of subsequent agreements in the Public Registries, as would be the case for the registration of a demarcated Indigenous territory over an already registered protected area.

Similarly, Juan Carlos Ruiz, also a lawyer for the plaintiffs, recalled the binding nature and constitutional rank of article 14 of ILO Convention 169, which establishes that possession of the territories already constitutes property. He questioned the defendants' use of the legal system as a mere list of isolated norms and not as a holistic whole to be interpreted, and that they do not make an effort to understand the specificity of Indigenous property, as they interpret it only under the civil code.

"We have always walked in this natural environment where we have lived together (...) Our communities exist, you can prove that we live in the area, what more do you want? There is the lived experience of our ancestral communities in the different names that exist in the area. The authorities impose upon and ignore these places where we have grown up. We ask the authorities to respect where we have lived.” -Wiler Saurín, Vice-president of CODEPISAM.

"We have owned and cared for our mother nature for thousands of years. I don't know why the authorities don't know about the place we have inhabited forever. Please understand! We have been listening for a long time, but we can no longer remain silent. We have a voice and a vote to speak. Let's have the right thing valued.” -Apu Inocente Sangama, President of CEPKA.

All in all, the Civil Court of Tarapoto now has the historic task of ratifying the first instance sentence and pushing the country towards a conservation of biodiversity with respect for the rights of Indigenous peoples.