Peruvian Indigenous community initially granted right to reclaim ancestral rainforest land, but later loses it

Appeals court overturns historic ruling allowing Peruvian Indigenous community to reclaim ancestral rainforests, causing controversy among legal experts.

The Kichwa tribes inhabited the region where Cordillera Azul National Park was established for centuries, alleging that their land was unlawfully taken when the park was created in 2001. In an effort to offset their carbon emissions, multinational corporations such as Shell and TotalEnergies have spent over $80 million purchasing credits in the park.

However, despite receiving over $80 million in credits, the Kichwa community of Puerto Franco has fallen into food poverty, as they were deprived of their right to hunt, fish and gather in the area after the park was established. In a significant legal triumph for the community, Judge Simona del Socorro Torres Sánchez ruled in April that creating the park without their consent had violated their rights. She ordered authorities to grant them title to the land and allow them to participate in managing and benefitting from conservation activities in the park.

Only ten days after the landmark ruling, an appeals court invalidated the decision by stating that the nonprofit organization CIMA, which operates the park and oversees the carbon credit project on behalf of the government, was improperly named as a co-defendant in the case. The appeals court deemed the decision flawed due to “unresolvable defects” in terms of both due process and the reasoning of the judicial decision, thus annulling the benefits granted to the Kichwa tribe.

Regarding the appeals court’s ruling, CIMA’s executive director, Jorge Aliaga, expressed his satisfaction, stating that the formal procedures of the judicial process in Peru must be followed.

While CIMA welcomed the ruling, three Peruvian lawyers, who reviewed the case at the request of The Associated Press, have expressed doubts about the appellate court’s decision. Two of the lawyers stated that CIMA had seemed to have played a role as a co-defendant in the lawsuit, and even if a procedural error had occurred, it likely did not violate due process. All three lawyers believed that it was inappropriate to overturn the entire ruling.

Pedro Grández, a constitutional lawyer and professor at the Pontifical Catholic University of Peru, criticized the appellate court’s action, stating that it was “not normal at all.” He claimed that the court seemed to be making a decision on the matter’s substance despite only reviewing the procedure.

Juan Carlos Díaz, another constitutional lawyer at Pontifical Catholic, remarked that he sees “no grounds” for the nullification of the initial ruling, highlighting that CIMA’s attorney had participated in the legal proceeding where it was named as co-defendant and did not raise any objections.

Echoing similar views, constitutional law expert Silvia Sánchez, who is an associate professor at the Academy of the Magistrature, has stated that there were only trivial issues that were insufficient to annul an entire process and send it back to the hearing.

She has indirectly criticized the move by the appeals court and suggested that the decision might have influenced public opinion negatively.

Following the nullification of the original ruling, the case would have gone back to Del Socorro Torres Sánchez, but the Peruvian government asked the same appellate panel to examine the case’s merits. The government is contending that the Kichwa tribe cannot make any claims because the statute of limitations has expired. The government also argues that it’s impossible for the park to overlap with Kichwa territory since the said territory has not been officially defined.

According to an International Labor Organization (ILO) Indigenous convention that Peru signed in 1994, the Kichwa tribe should have access to their ancestral land. Some Kichwa members have expressed their agony and distress in losing access to their land, with some breaking down in tears while speaking to The Associated Press. They have been unable to cultivate farmland as they could not clear trees and had to rely on an already overfished river as a food source. Consequently, they were unable to afford schooling for their children.

Peruvian authorities had contested the community’s claim, stating that they did not object to the creation of the park in 2001, nor did they raise any complaints after a mapmaking workshop held two years later.

Despite the Peruvian authorities’ arguments, Judge Del Socorro Torres Sánchez had established that the Kichwa tribe’s rights have been repeatedly violated when the park was established without consulting them beforehand. She underlined that the absence of a request for consultation from the Kichwa tribe does not release the state from its obligation to conduct public consultation as required by the Indigenous convention signed by Peru in 1994. Furthermore, she emphasized that the attainment of the Indigenous community’s consent is not a mere formality that can be overlooked.

Judge Del Socorro Torres Sánchez’s decision mandated park rangers to grant the Kichwa community full access to the forests. Her ruling also suggested that the Kichwa tribe could share in the revenue generated from the sales of carbon credits, directing Peru’s parks authority, Sernanp, to “acknowledge the right of the native communities to reap the benefits of conservation activities in their territories.”

Judge Del Socorro Torres Sánchez remarked that despite the Kichwa tribe’s efforts to help maintain the forests, the community of Puerto Franco had not benefitted “even a bit” from the significant revenue generated by the conservation project.

Given the patchy cell phone service in the region where the Cordillera Azul National Park is located, AP’s attempts to reach members of the Puerto Franco Kichwa community via phone were unsuccessful.

The Forest Peoples Programme, a nonprofit organization that has worked on behalf of the Kichwa tribe, had applauded the initial decision, believing that it would establish a precedent for Indigenous communities throughout Peru. Matías Pérez Ojeda del Arco, a member of the FPP, criticized the appellate court’s decision to nullify the ruling, calling it a “blatant legal irregularity” and urged the Peruvian authorities to investigate the matter further.

Pedro Grández, a constitutional lawyer at Pontifical Catholic, expressed his opinion that the first verdict should remain in effect until the appeal panel assessed the case’s substance.

He has advised Judge Sánchez to sustain the sentence since the community still has a ruling in their favor. The Peruvian government declined to comment on the matter despite multiple requests for a statement.