Will Peru’s highest court secure justice and make environmental and social history?

On 20 August 2018, Peru’s highest court, the Constitutional Tribunal (TC) agreed to resolve the lawsuit filed by the Shipibo-Conibo community of Santa Clara de Uchunya against agencies of the Regional Government of Ucayali and the palm oil company Ocho Sur P SAC (formerly Plantaciones de Pucallpa SAC) for the unlawful dispossession, destruction and conversion of almost 7000 hectares of their ancestral forest lands.

Even without a final decision from the TC, the village of Santa Clara has made history. This is the first time Peru’s Constitutional Court will make a decision about the rights of an indigenous people to their traditional lands which it accepted given the nature of the rights at stake and the urgency of the case. The ruling of this Court will have substantial repercussions for all indigenous peoples living in Peru and millions of hectares of Amazon forest, as the vast majority of their ancestral forest lands remain without effective legal recognition and protection.

 

Carlos Hoyos Soria, president of the Community said “Our village is an island of forest surrounded by a sea of palm oil and under siege from armed land traffickers. We have fought for over 4 years and still the government has taken no effective steps to protect our lives and forests, with the result that community-members, authorities and leaders continue to suffer constant threats and harassment. Despite this, our community has not lost hope and we trust now that the highest court in our country will uphold our rights and order the government to return us our lands and restore our forests.”

 

To support the Court’s assessment, two international human rights organisations, including the prestigious Global Justice Clinic of New York University School of Law, have filed an amicus curiae brief to the court which, based on the facts of the case presented by defendants and plaintiffs and international human rights law applicable in Peru, provides advice to the Court on the duties and responsibilities of the Peruvian Government.

The Amicus brief states that “…given the clear facts of this case and the applicable law,[1] it is the opinion of GJC and FPP that the State has failed to carry out its duties and obligations under the Constitution as interpreted together with Peru’s international obligations.  The failure of the State to title the full extent of the Santa Clara Native Community lands and continue to grant interests on those lands knowing the existence of their claims, have caused them grievous harm.  As explained in this amicus, while indigenous property rights can be limited, including through grants of interests to others, the State took none of the actions required to lawfully effectuate such limitations. ……. The State has presented no evidence that it took a deliberate and proportional decision pursuant to national law and with full due process and compensation to the Community.  The State presents no evidence showing that it secured FPIC (Free, Prior and Informed Consent) from the Community; reached an agreement with the Community on equitable, reasonable benefit sharing; conducted an independent participatory ESIA (Environmental and Social Impact Assessment); and required the development and implementation of mitigation measures.  All evidence to date clarifies that the State instead took repeated decisions  to erode the Community’s land rights by a series of titling and licensing activities, culminating in a large scale palm oil production that not only deprived the Santa Clara Native Community of their right to own, use and control their lands, resources and territories, but prejudiced and continues to threaten their very physical and cultural survival, and hence other human rights. 

The amicus concludes that: “As the Community has always maintained special connection to the claimed traditional territory –including where the State (with the assistance of the Regional Government of Ucayali) has previously awarded titles, certificates of possessions, authorized property conversions, and classified them as “state forests” – restitution of the Community’s territory is the preferred remedy.  Restitution should be accompanied by an order that the lands be environmentally restored and the Community compensated by the State and/or the company Plantaciones de Pucallpa S.A.C. Company (now Ocho Sur P. S.A.C)”

A hearing before the TC may well take place before the end of 2018 where the community, the government and palm oil company will have final chances to express their views and provide any relevant evidence.

In a further boost to the community’s efforts to secure justice, the Inter American Commission on Human Rights (IACHR) has granted them a hearing before commissioners in its 170th periodic session in Washington DC on 5 December 2018. Two members of the community will travel to the hearing alongside their legal advisors the Institute of Legal Defense (IDL) and representatives of the Federation of Native Communities of the Ucayali region (FECONAU).

[1] Reference to applicable law in this amicus includes national and international law applicable to Peru, whichever standard is higher in a given circumstance.

Notes:

1. An amicus curiae (literally in Latin 'a friend of the court') is a legal brief submitted by a person or group who is not a party to an action, but has a strong interest in the matter, will submit a brief in the action with the intent of influencing the court's decision.
2. For copies of the amicus curiae briefs in Spanish and English please visit: https://www.forestpeoples.org/en/node/50320
3. For a legal analysis of the significance of the Constitutional Court’s decision visit: http://www.forestpeoples.org/sites/default/files/documents/Sta%20Clara%20TC%20decision%20significance.pdf
4. For further background information please visit: http://www.forestpeoples.org/en/featured-topic/struggle-shipibo-community-santa-clara-de-uchunya-against-expansion-oil-palm

Contacts: For contact with community representatives and legal advisors please e-mail communications@forestpeoples.org