Kichwa Community of Puerto Franco Continues Legal Struggle in the Peruvian Courts to Reclaim Territory Taken by Cordillera Azul National Park

MIDAGRI, for its part, argued that the community had resorted to a writ of amparo without first exhausting administrative channels. It also argued that the Puerto Franco community had not demonstrated that any titling process was underway and, as such, had failed to show that they had undertaken a process for re-establishing the boundaries of the Permanent Production Forests gazetted in their territory [Bosques de Producción Permanente] (BPP).

The community’s lawyer, Dr. Cristina Gavancho of the Instituto de Defensa Legal (IDL), challenged the community’s dispossession by pointing to the State’s failure to title Puerto Franco’s territory, an omission that had allowed the government to award two timber concessions, establish a BPP and gazette a national park engaging in exclusionary conservation in their territory, threatening the community’s survival. She also pointed out that the Respondents’ arguments went so far as to question the legitimacy of the native community's [comunidad nativa] status as an Indigenous people.

The Procurator's Office of the Regional Government of San Martin argued that they were not included in the legal process in the best way and that they only found out about the case when the judgment was notified.

The community’s lawyer highlighted the lack of participation of the community in the management of the PNCAZ and their exclusion from benefitting from the millions of dollars generated by the sale of carbon credits from the Park's REDD+ Project, which has generated an international scandal, with the case even reaching the United Nations Committee on the Elimination of Racial Discrimination (CERD), which recently demanded explanations from the Peruvian State.

 

“The [Inter-American Commission on Human Rights], the [Inter-American Court of Human Rights], the UN Special Rapporteur on the Rights of Indigenous Peoples and the UN Special Rapporteur on Human Rights and the Environment have expressed that conservation cannot be pursued at the expense of the rights of Indigenous peoples (...) The appealed judgment is historic for the community as it vindicates their territorial rights and allows for the Respondents’ omissions to be corrected", said Cristina Gavancho.

 

Dr. Gavancho also challenged the Respondents’ insistence that the recognition of a native community [comunidad nativa] is a constitutive act of rights, without understanding that it is merely a declaratory act. To say that Puerto Franco has existed since it was recognised by the State has no legal basis or foundation. The Constitutional Court already said so in the Maray Case, STC N° Exp. 2196-2014-PA/TC (f.j. 33 and 34).

The community’s lawyers also argued that the statute of limitations does not apply in this case, as MINAM argued at the hearing, since article 45, paragraph 5 of the constitutional procedural code provides that it does apply when violations are continuous or by omission. And that the Constitutional Court has already ruled that the appropriate avenue for the protection of communal property is through an amparo procedure and not an administrative one, refuting the arguments made by MIDAGRI. .

 

“Article 4 of the Law on Protected Areas does not apply to Indigenous peoples (...) it refers to the handing over of territories to private individuals. Article 89 of the regulations of the Law on [Protected Areas] and Article 110 of the Environmental Law do recognise that the State must recognise and guarantee the rights to property and possession of communities present in [protected areas] prior to their creation. The community has an anthropological report that substantiates their presence", said Cristina Gavancho.

 

Juan Carlos Ruíz Molleda, lawyer for CEPKA, highlighted article 14 of ILO Convention 169, which has constitutional rank and recognises the ownership and possession of traditionally used territories and protects the right to consultation of Indigenous peoples.

 

"It has been said that the Consultation Law was passed in 2011 and an administrative act from 2001 is being challenged. The Constitutional Court in 2009 said that ILO Convention 169 has been binding since 2 February 1995, meaning it is mandatory to comply with it. Consequently, it is not a retroactive application. A law cannot be above what the Constitutional Court has already said (...) And Indigenous peoples do not have to be titled in order to be owners, because they already are owners. Traditional occupation grants ownership, as stated in paragraph 117 of the Xukuru versus Brazil Judgment of the [Inter-American] Court [of Human Rights]", said Ruiz Molleda.

 

Finally, Puerto Franco and CEPKA urged the court of appeals to uphold the judgment.

 

"Through ignorance, SERNANP dispossessed us of our territory, where my grandparents, great-great-grandparents, parents and my brothers and sisters used to carry out their livelihood activities such as hunting and fishing, so I ask that they confirm Puerto Franco’s historic judgment and at the same time I demand that they give us title to our territory so that we can freely use it for the sustenance of our families. We have protected these forests for a long time (...) Who stands up when there are threats to our territory? Does the public prosecutor go there? Do the police go there? Does MIDAGRI go there? We are the ones who stand up, men and women. We are not going to allow SERNANP to enter our territory," said Henry Fasabi, leader of the Puerto Franco community.

 

 

"How is it possible that this is happening in San Martin? They say that they are not violating Indigenous rights. How is it possible that they are not violating our rights if they do not allow us to enter the forest to carry out our activities? How is it possible for them to restrict us, to discriminate against us? We know that, because of our ancestors, we are the first ones who have taken care of the forests (...) Puerto Franco is not alone, listen to our rights that we have as such. They are recognised by the political constitution. They are recognised by international law. We are not asking for a favour, we are asking for a right", said Inocente Sangama, leader of CEPKA.

 

_[1] In most Spanish-speaking jurisdictions, the writ of amparo provides a remedy for parties seeking the protection of their constitutional and human rights when these are being infringed.