"Where there are indigenous peoples with rights, there will always be living forests": CEPKA denounces Peru’s MINAGRI for preventing the titling of their communities' ancestral territories

In July, the Ethnic Council of the Kichwa Peoples of the Amazon (CEPKA) filed a lawsuit of Popular Action against Peru’s Ministry of Agriculture and Irrigation (MINAGRI) before the Superior Court of Justice of Lima. They detailed the reasons for the lawsuit this week, during an online press conference.

CEPKA represents 43 native communities located in the provinces of Lamas, San Martin, Tocache, Bellavista, Sisa and Picota in the San Martin region. According to the organisation's president, Isidro Sangama, MINAGRI’s ruling impedes the legal security of the ancestral territories of some of these communities.

“The Ministerial Resolution ignores native communities and affects the titling of the indigenous territories. It does not do what ILO Convention 169 requires: for native communities’ territories to be titled," he said.

Indigenous representative and CEPKA leader Nelsith Sangama pointed out that this resolution ignores the territories of the indigenous communities in San Martin, thus affecting the care of the forests and the health of the Kichwa population.

“As women, we feel ignored by the State, despite the fact that our communities have always existed in this region of San Martin. Furthermore, we women have not been consulted for this resolution. It affects us as there are restrictions to entering the territories. We know where there are medicinal plants to cure children, the sick, which is all the more important as we are living through this pandemic. And that is why we are making this complaint to the State (...), because where there are indigenous peoples with rights, there will always be living forests for everyone,” she said.

On 12 December 2019, MINAGRI issued Ministerial Resolution No. 0443-2019-MINAGRI, which approved the "Guidelines for the demarcation of lands of native communities." Despite seeking to contribute to the process of formalisation of the territory of the Amazonian communities, the resolution violates the fundamental rights of indigenous peoples, such as the right to property, to cultural identity, and to consultation.

Thus, in its Article 6, "Specific Provisions for Territorial Demarcation", in point 6.6.6 b. "Superposition with Natural Protected Areas" the regulation mentions: "If in the phase of information collection, the overlapping of a Native Community by a NPA [National Protected Area] is determined, the demarcation will proceed of those that have been formally recognised prior to the establishment of the NPA, according to the effective regulation, including the limitations and restrictions of use, as well as the environmental charges in the registry item of the property (...)".

For Cristina Gavancho, a lawyer at the Institute of Legal Defence (IDL), the adoption of this law generates a "process of exclusion" which "the Kichwa indigenous peoples have been suffering, because in 2005 [the date of creation of the Cordillera Escalera Regional Conservation Area] no process of recognition or titling of native communities was in progress thanks to their omission by public entities.”

To date, the lawyer indicates, there been no attempt to alignment the laws regarding titling and recognition of native communities, with ILO Convention 169 and the various international declarations that guarantee indigenous rights.

This ruling can prevent native communities from carrying out traditional activities, explains indigenous leader Misael Salas. "Our grandparents raised us with the riches that nature gives us. We have medicinal plants, we have our natural salt, we have food to gather, but unfortunately with this approach from the State, they are prohibiting us, they are tying our hands and feet so that we cannot enter [the forest], they dictate which activities we should not do (...) We need these areas to be titled in our communities’ names, not individually, but collectively, so that the indigenous people can have free access to walk, to go out and enter that area, without being suddenly stopped by an institution. Many times we are prevented from entering, and sometimes they press charges against us if we do," he said.

During the virtual press conference, CEPKA representatives stressed that the organisation is not opposed to the conservation of biodiversity. They explained that the Kichwa communities who have been affected by the territorial overlap of NPAs should be considered as conservation allies by the Peruvian state, and not as potential perpetrators of environmental crimes as grounds for exclusion from territorial rights. It has been proven in many countries that, with adequate respect for the territorial rights of indigenous peoples, biological biodiversity conservation strategies become much more effective. The Ministerial Resolution in question fails to respect these rights.

CEPKA is calling for:

• MINAGRI to modify its rules on titling, in accordance with Article 14 of ILO Convention 169 and the jurisprudence of the Inter-American Court of Human Rights, which states that indigenous peoples are owners and possessors of the territories they have traditionally occupied even if these are within the scope of NPAs.
• MINAGRI, in coordination with Regional Governments, must develop simple and accessible legislative and regulatory processes for the titling of ancestral territories of Native Communities
• The annulment of MR No 0443-2019-MINAGRI for violation of the right to consultation and free, prior and informed consent, as constituting a real and imminent threat of violation of the constitutional right of Indigenous Peoples to the recognition and effective titling of the right to property over their traditionally occupied territories, and for violating other principles of constitutional relevance.
• MINAGRI to carry out prior consultation on the regulations it intends to approve, when they are likely to affect Native Communities, peasants and Indigenous Peoples in general.