Kichwa Indigenous community of Puerto Franco demands justice from the Peruvian judiciary in the face of exclusionary conservation, after four years of legal battle for their territorial rights

Last Tuesday, 12 November 2024, the single hearing was held in the amparo process that has been ongoing before the Mixed Court of Bellavista since 2020, led by the Kichwa Indigenous community of Puerto Franco and the Ethnic Council of the Kichwa Peoples of the Amazon (CEPKA).

This process began with a lawsuit filed against the Ministry of the Environment (MINAM), the Ministry of Agrarian Development and Irrigation (MIDAGRI), the Regional Agrarian Directorate of the Regional Government of San Martin and the National Service of Natural Areas Protected by the State (SERNANP), and in which the Centre for Conservation, Research and Management of Natural Areas (CIMA) has been incorporated due to its role in the management of the Cordillera Azul National Park (PNCAZ), in its capacity as Executor of the Administration Contract.

In the lawsuit, the community exposed how the State has violated their fundamental rights due to the failure of the Regional Government of San Martin (GORESAM) to grant title to the ancestral territory of Puerto Franco; the lack of consultation on the creation of the Cordillera Azul National Park without the consent of the Kichwa communities and other Indigenous peoples, on whose territories it overlaps; the establishment of Permanent Production Forests (BPP) within the territory traditionally occupied by the community; the granting of timber concessions by the Regional Environmental Authority of GORESAM within the communal territory; and the non-compliance with the right to benefit from conservation activities in their territories, in accordance with ILO Convention 169.

Dismembering Kichwa territory

During the hearing, the legal defence of the community, composed of Cristina Gavancho León and Juan Carlos Ruíz Molleda, lawyers from the Instituto de Defensa Legal (IDL), recalled which of the Kichwa people’s rights had been affected, such as the ownership of their ancestral territory calculated at more than 115,000 hectares, the right to prior, free and informed consultation, to consent, and to benefit from conservation activities in their territories.

 

“Exclusionary conservation is caused by the imposition of a natural protected area behind their backs... MINAM, SERNANP and CIMA have attached the document for the creation of the PNCAZ in which it is shown in its social diagnosis that the only revision on the part of those who have devised this protected area (PA) is the list of recognised and titled native communities. In other words, there is no mention of the presence of the Indigenous peoples of the area, as has been done in the creation documents of other PAs (...) The Inter-American Court, the IACHR, the UN Rapporteurs on Indigenous Peoples and the Environment have already expressed that nature conservation cannot be carried out excluding the recognition of the rights of Indigenous peoples,” Cristina Gavancho León, lawyer for the community.

 

The legal defence also pointed to the exclusionary REDD+ project operated by the Centre for Conservation, Research and Management of Natural Areas (CIMA), which has already been seriously questioned. The lawyers for the plaintiff also recalled the precautionary measure that the community had to request in relation to the activities of the Agrupación Maderera Alto Biavo S.A.C. in their territory, in the Remanso camp; they also recalled once again the indisputable fact that is protected by international human rights law, supported by international treaties ratified by the Peruvian state, but which still does not permeate state officials: the recognition and titling of a community is not an act that constitutes rights, but merely a declaration.

 

"The problem arises here when the right of ownership of Indigenous peoples over their territory is not fully understood. When one reads the writings of MINAM, SERNANP, CIMA, one has the feeling that they are trying to understand it with the civil code. Therein lies the problem (...) The titling of Puerto Franco, which is pending, does not create the right, it does not constitute the right, but has a declaratory effect. I am being titled not so that I can become an owner, but because I am already an owner. This is what ILO Convention 169 says and is endorsed by the jurisprudence of the Constitutional Court and the Inter-American Court of Human Rights (...)" Juan Carlos Ruiz Molleda, lawyer for the community.

 

Puerto Franco: We are Indigenous people!

Mr. Guillermo Salas, a member of the Puerto Franco community, in presenting his report of the facts at the hearing, claimed his territorial rights and questioned the attempt to ignore their status as Indigenous people. With a masterly review of the social, historical and geographical depths of their ancestral territory, he ended by inviting the defendants to go for a day's walk with them to the forest of Franco, to see if they really believe that the forests that their grandparents left them as an inheritance do not belong to them.

 

"I am a native of Puerto Franco. I was born in 53 and I know all my territory. Nobody is going to fool me, because I was born and bred, but I haven't studied a day. But I do know how to defend my rights. I know all the places from Guineillo, our great-great-grandparents made us walk through Piliyaku first, Guerra, Huito, Shansho, Limoncillo, Almendras, Yanayaku, Shiyu Shiyu, Maquisapal, Pintu llakta, from there we went to the left, walking for four days carrying supplies to take care of our territory," Guillermo Salas, community member of Puerto Franco.

"Now, who says that we don't know how to speak Kichwa? Ñukaykuna yachanisapa rimayta tukuyta, paykunaka man yachansapachu, ni riksinsapachu; maypin, maypin, maypin kiparin tukuy kaykunata ¡ I know, Madam Justice! Ñukaykuna riksinisapa Añallu llakta, Biavo, Kacha tigre, tukuy kañu negrota, ñukapish kani finado tataynimanta, finado awiluynimanta; uyarichun mana yachakchu. I was listening earlier to people saying: "There are no Indigenous people there". We are the Indigenous people! What does this man think, Madam Magistrate? He doesn't know. I would like to walk with this man who spoke earlier so that I can go and carry 50 kilos of fish. I am 71 years old, I walk, I am not made of paper papaya. Who says there are no Indigenous people in Puerto Franco? Manashi riksinsapachu, manashi yachansapachu, ñukaykuna kanisapa deverasmente indígenas Madam Magistrate ama chaytaka chay runaka rimachun," Guillermo Salas, community member of Puerto Franco.

“We have been told that we are not Indigenous. It can't be! It can't be that the lawyers, the defendants, act like this and say these things. It cannot be that these things are mentioned when an Indigenous person claims their rights. The Kichwa people exist in different places in our region of San Martin. We are a richness, not an obstacle. We are defenders of forests," Inocente Sangama, apu of CEPKA.

 

Defendants' arguments: structural discrimination

On the side of the defendants, there was a well-known tacit pact: to delegitimise the Indigenous status of Puerto Franco and exclaim its non-existence. Their arguments were discriminatory and ignorant of the Indigenous reality in a country that boasts of intercultural policies for its civil servants on paper, but which, in practice, refuses to recognise the Indigenous territory that is fundamental to its subsistence.

 

‘The so-called natives, who for me are mestizos (...) These gentlemen, because they are natives, they say they are natives, they have the right to their five-hundred-year-old ancestral territories. So all of San Martin belongs to them. In Tarapoto, our houses also belong to them (...) there are people who have infiltrated these pseudo-native communities, people who do not speak Kichwa, they speak pure Spanish, they wear caps and trainers’, said the lawyer for the defendants.

 

SERNANP and MINAM insisted, without the intercultural approach which they boast about in international forums, that the lawsuit had been filed 20 years after the creation of the Park: "It was only in 2021 that the community 'thought' to file this legal action," said the lawyer.

Also, that the community was not clear about what their territory was and that the overlapping should not be expressed by the community, but by the agrarian authorities. And that the Cordillera Azul National Park's prior consultation did not apply because there was no national regulation on prior consultation, ignoring the fact that the Constitutional Court (ground 23 of its ruling STC N°00025-2009-PI) had already settled this debate by ruling that consultation has been in force since Peru ratified Convention 169 in 1994; that is, seven years before the creation of the Park.

The Cordillera Azul National Park leadership remarked on the supposed participatory benefits of the Park, forgetting the more than 20 years of exclusion of the Kichwa communities. Likewise, they sustained that the creation of the Park did not affect any rights and that nobody lived there.

The defence of the Agrupación Maderera Alto Biavo S. A. C., a forestry concession superimposed on Puerto Franco, beyond discriminating against the Indigenous status of the community, was limited to questioning the international norms that protect the international rights of Indigenous peoples, alleging that they are merely nice theories.

CIMA mentioned that the distribution of benefits from the Park's REDD+ project is ‘duly transparent and managed’, claiming that the funds from the contract with the French company Total Energies Nature Based Solutions (TNBS) are managed by PROFONANPE, with a transparency manual for the management of the funds. Unfortunately, they forgot to mention that the Kichwas had to resort to a Court of Transparency and Access to Information to make CIMA deign to share the multi-million dollar agreement between CIMA and TNBS.

Finally, the GORESAM Ombudsman's Office questioned the use of the term exclusionary conservation.

Puerto Franco and the future of conservation in Peru: with or without Indigenous peoples

The community had already won this case last year. This decision was celebrated by the Kichwa who were pushing for a new conservation paradigm in the country, and who have called for a new social contract for biodiversity conservation. Unfortunately, the case was overturned on procedural grounds, drawing heavy international scrutiny.

Now, after Tuesday's hearing, the Mixed Court of Bellavista has ten days to issue its ruling, in accordance with article 12 of the Constitutional Procedural Code. All eyes at national and international level remain on the resolution of this emblematic case of conservation that violates the territorial rights of Indigenous peoples, and in which the community members of Puerto Franco hope that there will be no change in the substance of the initial decision that considered the claims of the community and CEPKA to be well-founded.

Puerto Franco is on the brink of a historic decision: a conservation without Indigenous peoples, which allows the perpetuation of an exclusionary and racist conservation model contrary to the standards of the universal human rights system; or another kind of conservation, with full respect for the rights of Indigenous peoples.