A landmark ruling that an Indigenous community in the Peruvian Amazon could reclaim ancestral rainforests has been set aside by an appeals court in a move some legal experts called irregular.
Kichwa tribes lived in the area of Cordillera Azul National Park for centuries before the park was founded in 2001 in what the Kichwa say was theft of their land. Major companies such as Shell and TotalEnergies have spent more than $80 million since then buying credits in the park to counter their carbon emissions.
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That money hasn't helped the Puerto Franco community of Kichwa, who fell into food poverty after losing free access to hunt, fish and gather in the park area. The community celebrated a dramatic legal victory in April, when Judge Simona del Socorro Torres Sánchez ruled that creating the park without their consent had violated their rights. She ordered authorities to begin granting them title to the land, to ensure they benefit from conservation activities in the park and participate in its management.
Ten days after that ruling, an appeals court ruled that CIMA, the acronym for the nonprofit that runs the park for the Peruvian government and administers the carbon credit project, had been improperly added as a co-defendant in the case. The appeals court threw out the ruling and with it the benefits ordered for the tribe, citing "the presence of insurmountable defects both in due process and in the motivation of the judicial decision.”
CIMA welcomed that ruling. “As with any judicial process in Peru, formal procedures ... must be followed,” executive director Jorge Aliaga said by email.
But three Peruvian lawyers who reviewed the case at the request of The Associated Press questioned the appellate court’s action. Two said they believed CIMA appears to have been participating as a co-defendant in the lawsuit, and even if a procedural error had been made early on, it didn’t amount to a violation of due process. All three said it was wrong to throw out the entire verdict.
“It’s not normal at all,” said Pedro Grández, a constitutional lawyer and professor at the Pontifical Catholic University of Peru. He said the court was “trying to weigh in on the substance of the matter when it hasn’t reviewed anything of substance, only the procedure.”
Juan Carlos Díaz, also a constitutional lawyer at Pontifical Catholic, said he saw “no grounds” to annul the original ruling, noting that CIMA’s lawyer had taken part in the judicial hearing in which it was added as co-defendant and presented no objections.
“I think the appeals court made a mistake," Diaz said.
Constitutional law expert Silvia Sánchez, an associate professor at the Academy of the Magistrature, which trains Peruvian judges, said there were “irrelevant or minimal issues for breaking an entire process and returning it to the hearing.”
The case would have gone back to Torres Sánchez due to the supposed procedural error, but Peru's government successfully asked the same appellate panel to consider the merits of the case. The government argues that the statute of limitations has expired for the Kichwa to make a claim. The government also says that it's impossible for the park to overlap with Kichwa territory because that territory has never been legally defined.
An AP investigation in December found that park land almost certainly includes Kichwa ancestral territory, by the definition of an International Labour Organization (ILO) Indigenous convention Peru signed in 1994.
Some Kichwa members wept as they described to AP the hardships of losing access to the land. Unable to clear trees for farmland and sandwiched between protected areas, they relied on an overfished river for food and said they could no longer afford to educate their children.
Peruvian authorities had argued in legal filings that the community didn’t object to the park’s creation in 2001, nor raise complaints during a mapmaking workshop two years later.
But Torres Sánchez ruled that the Kichwa’s rights had been “violated several times” when the park was created without prior consultation. That the Kichwa didn’t request consultation “does not exonerate the state from its obligation to carry it out,” she wrote, adding that attaining Indigenous consent “is not a formality to be overcome.”
Her ruling ordered park rangers to allow the Kichwa full access to the forests. It also implied the Kichwa might share in the money raised from carbon credit sales, ordering Peru’s parks authority Sernanp to “comply with the right of the native communities … to benefit from conservation activities in their territories.”
Torres Sánchez said Puerto Franco had not benefited “one iota” from the huge proceeds of the conservation project, even though Kichwa guardianship had helped sustain the forests.
Cell phone service in the park region is patchy, and attempts to reach members of the Puerto Franco Kichwa by phone were unsuccessful.
The Forest Peoples Programme, a nonprofit that has advocated for the Kichwas, said the first ruling had set a precedent for Indigenous tribes across Peru. FPP’s Matías Pérez Ojeda del Arco described the appellate court's tossing it out as a “clear judicial irregularity,” and called on the Peruvian authorities to investigate."
Grández, of Pontifical Catholic, argued that the lower court's ruling should stand going into that appeal.
“If I were (Judge Sánchez), I’d say my sentence holds until the appeals court reviews the substance,” he said. “Right now, the community still has a ruling in its favor.”
The Peruvian government did not respond to several requests for comment.
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This story has corrected the style for judge's surname on second reference.
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Mitra Taj, a journalist in Lima, Peru, contributed to this report.
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