AIDESEP And CODEPISAM Participate in Court Hearing in Constitutional Legal Proceedings Demanding a National Policy for the Titling of Indigenous Peoples' Territories

On 20 September 2023, the oral report was presented in the writ of amparo proceedings before the Fourth Constitutional Court of Lima, over the failure of the Presidency of the Council of Ministers (PCM), the Ministry of Agrarian Development and Irrigation (MIDAGRI), the Ministry of Economy and Finance (MEF), as well as the regional governments of San Martin, Loreto, Ucayali, Madre de Dios and Amazonas, to formulate and implement a public policy for the titling of the territories of Indigenous communities. The lawsuit specified that this policy should be national in scope and include regional action plans, with concrete and duly financed measures to title the territories of the 669 Indigenous communities of the Peruvian Amazon, whose territories remained untitled and hence lacked secure legal tenure at the time the case was presented.

In this amparo lawsuit and process, the Indigenous organisations representing the Amazonian Indigenous communities detail how they have achieved recognition of their right to territory at the level of international treaties and national rulings and those of the Inter-American Court of Human Rights (IACHR Court). Nonetheless, the State at the level of public policy has not aligned its internal processes in accordance with international human rights standards, generating a large number of communities whose titling processes remain pending, with a law that has not been updated since the 1970s. In addition, there are isolated guidelines that are not complied with at the level of the Amazonian regions and without sufficient budget at the national level and in each regional agrarian directorate directly responsible for carrying out titling procedures for Indigenous communities.

It is important to remember that the lawsuit demands, among other things, "the implementation of a preventive annotation mechanism within the titling procedure, which allows for the effective safeguarding of the communities", precisely as a transitional mechanism for the protection of Indigenous territories as the titling processes in the country take years. For example, of nine projects with the goal of titling 719 communities in the decade from 2010 to 2020, only 20% progress was made: just 147 communities were titled and registered in the Public Registry. This problem was noted by the United Nations in 2020, which highlighted the bureaucratic, slow and tedious land titling process as a fundamental cause related to social conflicts.[1]

The vice-president of the Coordinator for the Development and Defense of the Indigenous Peoples of San Martin (CODEPISAM), Wiler Saurin Tangoa, and the board member of the Interethnic Association for the Development of the Peruvian Rainforest, Julio Cusurichi Palacios (AIDESEP) made the factual report.

The process is receiving legal support from the Institute for Legal Defense (IDL) and Forest Peoples Programme (FPP), by lawyer Olga Cristina Gavancho León, and by AIDESEP, by lawyer Rocío Roxana Trujillo Solís, who were in charge of the report on rights. For the defendant, the lawyers from the offices of the PCM, MEF and the Ministry of Culture were in charge.

Throughout the oral report, Gavancho León was in charge of absolving the formal aspects of the lawsuit, questioned by the entities summoned, as well as highlighting that the lawsuit seeks a constitutional control by the constitutional judge of the public policy for titling Indigenous communities in the light of international human rights standards, and the essential content of the right to communal property. For this reason, she asked the court to declare the exceptions raised by the entities summoned unfounded.

 

"The arguments of the Presidency of the Council of Ministers in its response to the complaint that the constitutional process of amparo is not a scenario in which the ownership of a right is debated or granted, cannot be upheld.  In the specific case, it is still possible to adopt effective measures to grant title over Indigenous communities’ territories, through reforms in public policies on territorial protection and the adoption of concrete actions in specific cases. Consequently, it is possible to reverse and repair the damage, with which this plaintiff complies with the present procedural requirement in accordance with the provisions of article 1 of the New Constitutional Procedural Code," argued Cristina Gavancho León, IDL lawyer.

 

Trujillo Solís also pointed out in her oral argument that the right to access the services provided by the corresponding institutions in the languages of the appellants needed to be protected, and that these services were not currently being provided. She highlighted the uniform jurisprudential line on this matter of the Constitutional Court, as well as other high courts of justice across the country.

"Our aim is to order the entities summoned to design, publish and implement, in collaboration and consultation with the Indigenous communities and their representative organisations, a policy with concrete goals and objectives." Rocío Trujillo Solís, AIDESEP lawyer.

In addition, the vice-president of CODEPISAM, Wiler Saurin Tangoa, in charge of the factual report, told the judge to protect the right to communal property of Indigenous peoples, as they are subject to systematic appropriation due to lack of legal security, even as they alone care for their territories in the presence of land traffickers, deforestation and the acquiescence of the State itself for not protecting their territories in a special and effective way.

 

 

"Just to give you an idea, during the government of Alan García, the communities of the lower Huallaga requested the nullity of a concession called Ecoámerica, which was granted in Kichwa territory, only to have the same area handed over to the company Nathaly Valentina. Thus their territory is not protected and the State turns its back on them," Wiler Saurin, vice-president of CODEPISAM.

 

In view of the reports from the plaintiffs and their lawyers, the lawyers from the public prosecutors' offices present asked the court to declare the lawsuit inadmissible on the grounds of the exceptions raised and requests made in their responses to the lawsuit, pointing out that what the plaintiffs are requesting in the present process would imply a budgetary provision that they do not have and that the amparo would not be the appropriate way to discuss the claims.

The Ombudsman's Office itself, in its 2014 and 2018 reports on the titling of Indigenous communities, pointed out that "it has been possible to verify various problems such as (1) the absence of integrated and updated regulations on the recognition and titling of communities, (2) the lack of a governing body to guarantee the recognition and titling of communities, (3) the lack of centralised information on the number of peasant and native communities, (4) insufficient specialisation and training of the personnel in charge of recognition and titling processes, (5) the lack of dissemination of rights and adequacy of management instruments, (6) the lack of budgetary prioritisation for the implementation of the recognition and titling process of peasant and native communities, and (7) the lack of guidelines to solve the controversies derived from the overlapping of rights" (p. 3).

The Constitutional Court has already stated that the constitutional judge is empowered to control the public policies adopted by the competent bodies, as can be seen in Exp. N 03228 2012-PA/TC, Exp. N° 0014-2014-PI, Exp. N° 02566-2014-PA/TC, among others.

Therefore, at the end of the hearing, the judge indicated that he would issue his judgment within the legal deadline, in accordance with the provisions of the fourth paragraph of article 12 of the New Constitutional Procedural Code, i.e. within ten working days.