In an important legal victory, a Kichwa Indigenous community won the right to their territory in the Cordillera Azul National Park, Peru. Ten days later an appeal court threw out the ruling
CIMA, the company running the national park, welcomed the appeal court's ruling.
In April 2023, the Indigenous Kichwa community of Puerto Franco, near the Cordillera Azul National Park, celebrated an important legal victory. The Mixed Court of Bellavista of the Superior Court of Justice of San Martín ruled that the local authorities should start a titling process of the territory traditionally used and occupied by the Kichwa community.
Ten days later, an appeals court set that ruling aside on a technicality.
Indigenous Kichwa communities lived in and around what is now the Cordillera Azul National Park for hundreds of years before it was declared a national park.
In 2020, the Kichwa community of Puerto Franco the Ethnic Council of the Kichwa Peoples of the Amazon (CEPKA) filed a lawsuit against the Peruvian Government and the Cordillera Azul National Park. When the park was established in 2001, they were not consulted.
Neither were they asked when the company that runs the national park, CIMA (Centro de Conservación, Investigación y Manejo de Áreas Naturales), created a REDD project on the national park and started selling carbon credits.
Since then, Big Polluters including Shell and TotalEnergies have spent more than US$80 million on more than 30 million carbon credits from the Cordillera Azul National Park REDD project.
But the Kichwa have not so far seen any benefits from the sale of carbon credits from the national park. The community of Puerto Franco has fallen into food poverty after losing access to the forest inside the national park. Previously they hunted, fished, and gathered fruit, vegetables and medicines from the forest. Since being excluded from the national park they can no longer afford to educate their children.
The appeals court ruling
The Associated Press reports that the appeals court ruled that CIMA, the company that runs the national park and administers the REDD project, “had been improperly added as a co-defendant in the case”.
Ed Davey, a journalist with the Associated Press, writes that,
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.
The government argues that the statute of limitations has expired for the Kichwa to claim their land rights. The government also argues that the national park cannot overlap with Kichwa territory, because that territory has never been legally defined.
Peruvian authorities argued that the community did not object to the establishment of the national park in 2001. Neither did they raise complaints during a mapmaking workshop in 2003.
But Judge Simona del Socorro Torres Sánchez ruled in the March 2023 public hearing that the Kichwa’s rights had been “violated several times” when the park was created. Whether the Kichwa requested consultation or not, “does not exonerate the state from its obligation to carry it out,” she wrote. Indigenous consent “is not a formality to be overcome,” she added.
“Not normal at all”
The Associated Press asked three Peruvian lawyers to review the case. All three questioned the appeal court’s action.
“It’s not normal at all,” Pedro Grández, a constitutional lawyer and professor at the Pontifical Catholic University of Peru, told the Associated Press.
Silvia Sánchez is an associate professor at the Academy of the Magistrature, which trains Peruvian judges. She told the Associated Press that there were “irrelevant or minimal issues for breaking an entire process and returning it to the hearing.”
Juan Carlos Díaz, another constitutional lawyer at Pontifical Catholic University, said that he saw “no grounds” to set aside the original ruling. CIMA’s lawyer had taken part in the judicial hearing in which CIMA was a co-defendant. The lawyer made no objections.
“I think the appeals court made a mistake,” Díaz told the Associated Press.
That is a truly sad situation. Courts should be able to understand that when they are ruling on what is principally a class conflict, they should actually recuse themselves as they virtually all represent the upper class, shamelessly, I might add.