Ocho Sur: spreading COVID-19 while the indigenous community of Santa Clara de Uchunya awaits a ruling from the Constitutional Court

Indigenous and human rights organisations have filed a criminal complaint against Ocho Sur, a palm oil producer in Peru’s Ucayali region, for continuing its operations throughout the COVID-19 pandemic, and therefore exposing the local population to infection. This is just one of the many systematic violations committed by the company, while the indigenous community of Santa Clara de Uchunya is still awaiting a ruling from the Constitutional Court to reclaim its ancestral territory.

June was a cruel month for the Shipibo people of Peru's Ucayali region. The number of confirmed cases of COVID-19 in formally-recognised Indigenous communities increased from 176 to 1078, and suspected deaths from 20 to 94. The under-reporting of cases in the indigenous population is due to the lack of COVID-19 testing and failure to register ethnicity during testing.

No sooner did the virus reach the Peruvian Amazon then it spread widely, in a context where the high epidemiological vulnerability of the Indigenous Peoples and the precariousness of State health systems converge alarmingly; fewer than four in ten Amazon communities have a health centre in their territories. The State, with its lack of awareness of social reality and its various uncoordinated assistance policies, is one of the many vectors of COVID-19 transmission here. Another are the extractive and agro-industrial companies, as exemplified by the Ocho Sur group producing palm oil in the Nueva Requena district, Coronel Portillo province, in the Ucayali region.

During the National State of Emergency, the Ocho Sur group did not cease its agro-industrial activities. Today, in the circa 13,000 hectares of primary forests illegally acquired and deforested by the companies Plantaciones de Pucallpa SAC (now Ocho Sur P SAC) and Plantaciones de Ucayali SAC (now Ocho Sur U SAC), it is not just oil palm expanding, but also COVID-19.

Warnings were quickly issued regarding Ocho Sur’s activities during the pandemic. These included Kené Institute of Forestry and Environmental Studies on 10 April, the AIDESEP Ucayali Regional Organisation (ORAU) on 17 May and the Federation of Native Communities of Ucayali and Tributaries (FECONAU) on 18 May, who each denounced the company's irresponsible exposure to COVID-19, based on the testimonies of workers forced to remain in deplorable conditions, risking their physical safety and fundamental rights.

On 5 June, the Ombudsman's Office of Ucayali, together with the Regional Health Directorate of Ucayali and Public Prosecutors, arrived at Ocho Sur’s facilities to monitor the labour and health conditions and discovered that 35 out of 39 workers – 90% - tested positive for COVID-19. In a press release published in April, Ocho Sur claimed to comply with safeguards, but this chilling data begs the question: where is the evidence of this? Where was compliance with the Ministerial Order 0094-2020-MINAGRI of 3 April, regulating the activation and execution of health and safety protocols to safeguard the health of those working in the agricultural sector?

For this reason, on 9 June, FECONAU, the Institute of Legal Defense (IDL) and the Pucallpa Human Rights Commission filed criminal charges against Ocho Sur P SAC at the Campo Verde Corporate Public Prosecutor's Office for crimes against public health and the freedom to work, based on the Peruvian Criminal Code that covers: i) the spread of dangerous or contagious diseases, ii) violation of health measures, iii) threats to health and safety conditions at work, and iv) forced labour.

"Even before the pandemic we reported [Ocho Sur] as there were indigenous people working in inhumane conditions, and now this proves it. We've seen six people in a two-by-two-metre room, and infected people living together in one room. It's deplorable. The workers did not have any protective measures. Even in a state of emergency, the company has continued to act irresponsibly and in inhumane conditions. For this reason, for us, these charges against Ocho Sur have been significant in raising awareness of the situation at the regional, national and international levels. Furthermore, we have seen that there are indigenous peoples from other regions, and not just Shipibo people. The company states that they are from Loreto and that they are not indigenous. Maybe there are no indigenous people in Loreto? And they hid the Shipibo people working there so that they couldn't give their statements during the inspection. While we were visiting one site, the company went ahead to another to change the signage and make everything look pretty." – Miguel Guimaraes, President of FECONAU

Ocho Sur P SAC is no stranger to labour-related complaints; Convoca recently discovered that since 2017, the company has had five labour-related complaints registered with the National Superintendence of Labour Inspection (SUNAFIL). Ocho Sur P SAC also has cases at the Corporate Provincial Prosecutor's Office Specialising in Corruption Crimes by Ucayali Officials.

As if that were not enough, Ocho Sur P SAC has been working without an approved Environmental Management Adaptation Programme (PAMA), according to a January 2020 report by the Directorate of Agricultural Environmental Management (DGA) of the General Directorate of Agrarian Environmental Affairs of the Ministry of Agriculture and Irrigation (DGAAA). A PAMA is required of companies that have ongoing activities in order to adapt to environmental requirements. However, Ocho Sur P SAC has failed to meet the requirements set by the PAMA Guidelines.

Among the reasons exposed in the DGA report, it is mentioned that the absence of authorisation for land use change required by Forest and Wildlife Law (Law No. 29763) cannot be confirmed, and that the Directorate of Forest and Wildlife Management of Ucayali did not receive an application, nor did it grant said authorisation to Plantaciones de Pucallpa, today Ocho Sur P SAC. Furthermore, Ocho Sur P SAC did not mention any intention of recovering the areas affected by the palm plantations located on land classified as for forest. The resolution to reject Ocho Sur P SAC's PAMA by the DGAAA is yet to be issued, and this must originate from the sanctioning bodies.

"In June, a health team entered Santa Clara de Uchunya and counted some 15 cases [of COVID-19]. There have been two deaths already, an elderly lady and a baby, with symptoms of coronavirus (...) The company has got rid of our medicinal plants, our clinic. Where will we get medication during the pandemic? They've closed off the forest to us and they treat us like thieves within our own territory. This is sad and we want action to be taken now, the Court must return our land that we and our grandparents have taken care of for many years." – Community member of Santa Clara de Uchunya, 9 July 2020.

As the pandemic expands in Indigenous territories, the activities of Ocho Sur P SAC demonstrate the impunity exercised over Indigenous Peoples’ ancestral territories. Not only has there been  corruption on a regional level with the agricultural authorities for the acquisition of rural land, or the  destruction of  forests and the intimidation of local people when they attempt to reclaim their territory, but also the fact that the company continues operating without any approved environmental management tool, even as criminal and labour charges accumulate. Now, the company is responsible for spreading COVID-19 in the Peruvian Amazon.

The case of Ocho Sur P SAC working on the ancestral territory of the Indigenous community of Santa Clara de Uchunya is emblematic, and the community have endured a lengthy wait for a sentence from the Peruvian Constitutional Court (Exp. No. 03696-2017-AA/TC). The request for defence submitted in May 2016 against Plantaciones de Pucallpa SAC (now Ocho Sur P SAC), the Regional Directorate of Agriculture of Ucayali and the National Superintendence of Public Registries of Pucallpa, seeks to nullify the contracts of sale signed by individual land occupants and the oil palm company. In addition, the 7000 seized and deforested hectares must be released and eventually returned to the community.

The dispossession of their territory has brought dire consequences, impacting traditional ways of life and local food security, and now the communities’ survival and contingency strategies against the spread of COVID-19 are being harmed. It is vital that the Peruvian Constitutional Court issue a ruling as soon as possible.

"The company has been contaminating and limiting the food security of the community for some time. We've been fighting this for a long time and along with FECONAU we will continue to campaign to raise awareness of the case and achieve results from the Constitutional Court.” – Miguel Guimaraes, President of FECONA