Ocho Sur against the ropes: Court hearing for operating mega plantation without forestry and environmental authorisations

According to the lawsuit, by not having the authorisation for change of use and an environmental management instrument, which are required by national legislation, the company affects the right to a healthy environment and the right to health. Faced with this situation, the main demand is that Ocho Sur cease its activities.

In the procedural justification from the plaintiff, IDL lawyer Isaac Peña mentioned that the Constitutional Court of Peru (TC) in an environmental case (case known as Punchana), evidence can be used. Furthermore, the TC’s jurisprudence has accredited that in environmental cases the amparo is the appropriate channel, such as the lawsuit against Ocho Sur.

The plaintiff put forward several arguments on the merits in a very clear manner.

First, that Ocho Sur does not have authorisation for change of land use, pointing to Regional Management Resolution 090-2021-GRU-GGR of 28/04/2021, which declares the company's administrative authorisation null and void. In addition, the approval of the authorisation of Ocho Sur’s change of use was questioned by the Comptroller General of the Republic, which concluded that it lacked legal grounds. The administrative resolution of the Regional Government of Ucayali is objective and not subjective, and the administrative responsibility falls on the company even if the the land has a new owner. In other words, the justification "It was Plantaciones de Pucallpa and it wasn't us", a narrative used by Ocho Sur, is not enough. This also undermines the message that Ocho Sur intends to convey to the public that it has the authorisation to change the use of the land.

"The defendant itself has acknowledged that it does not have authorisation for the change of use. It has brought this resolution (of denial of change of use) that I have mentioned to court. And in its fourth main claim, it asks that the approval of the change of use be confirmed. The defendant itself, in bringing the case to court and asking for this approval to be recognised, recognises that it does not have it", Isaac Peña, IDL lawyer.

Secondly, it was mentioned that the company does not have an Environmental Impact Assessment (EIA) or Environmental Management Instrument. According to report 0058-2024-MIDAGRI-DVDAFIR/DGAAA-LGCB, the company processed a PAMA which was withdrawn on 10 April 2024, while two days later it processed another PAMA. This confirms the lack of these instruments. Law No. 27446, Law of the National System of Environmental Impact Assessment and its regulation, states that it is mandatory to have this environmental certification, especially in activities which may cause a large negative environmental impact.

The plaintiff also mentioned that, in December 2023, the Peruvian State in its response to the United Nations in the framework of the letter generated by the United Nations Working Group on the issue of Human Rights and Transnational Corporations regarding allegations of human rights violations on the part of Ocho Sur, mentions in point 25 of its response:

 

"Therefore, Ocho Sur P S.A.C. does not have an approved environmental management instrument and, consequently, there are no socio-environmental commitments assumed in relation to the Native Community of Santa Clara de Uchunya. However, the party in question is obliged to comply with the environmental regulations applicable to its agricultural activities contained in the Environmental Management Regulations of the Agricultural Sector approved by Supreme Decree No. 019-2012-AG, the Law on Integrated Solid Waste Management, approved by Legislative Decree No. 1278, among other legal provisions applicable to the case".

 

A company, as mentioned by IDL's lawyer, operating a mega plantation twice the size of the district of Santiago de Surco in Lima, larger than the size of the districts of Villa Maria del Triunfo or San Martin de Porres and La Victoria in the city of Lima, is responsible for having a preventive environmental instrument due to the scale of its operations.

The company, through its defence, requested that the case be dismissed. Furthermore, it surprisingly mentioned that the first line of protection of fundamental rights and environmental protection was not the constitutional justice system, but the administrative authorities, thus ignoring the fact that the amparo is the ideal route. It is not true that in Peru there are levels that must be exceeded in order to enjoy the right to a healthy environment.

Ocho Sur's defence in relation to the authorisation of the change of land use attempted to shift the discussion towards the point that they did have approval of a Soil Survey Study, which is another instrument. And that the company did not require an authorisation for the change of land use, not recognising the environmental liabilities it inherited from the plantations of Plantaciones de Pucallpa, which, incidentally, had the same U.S. investors that Ocho Sur currently has.

It was left to a vote and it is hoped that the Peruvian justice system will be coherent in its actions in the face of a mega plantation that lacks the instruments to operate.