Besides clearing forest and fouling waterways, miners have left abandoned shacks and waste in the community.

Peru’s Constitutional Tribunal Rules in Favor of Indigenous Community

Barbara Fraser
10/2/12

In a decision that could have far-reaching consequences, Peru’s Constitutional Tribunal ruled that an Amazonian indigenous community could limit outsiders’ access to its territory and upheld the principle of communal autonomy.

The ruling, which was handed down on September 13 but not made public until September 25, involves the Shipibo and Ese’eja community of Tres Islas, about 17 miles from the town of Puerto Maldonado in the southeastern Peruvian region of Madre de Dios.

Besides upholding the community’s territorial rights, the tribunal ordered a lower court to nullify the convictions of four former community leaders who had led the fight against illegal loggers, miners and transportation workers who were entering Tres Islas without permission.

“We’ve had to move heaven and earth to defend our territory, but we have won,” Esperanza Gonzales, one of the leaders facing a prison term, said at a press conference in Lima on September 28.

In an effort to stop the illegal mining, which destroyed forest and polluted streams on between 25 and 35 acres of the community’s 76,000-acre territory, the community placed a gate across a dirt road leading onto its lands and set up a guard post staffed by a community member.

Tres Islas Warning Sign

Two companies that provided transportation to illegal miners took the community to court on the grounds that the gate violated their freedom of movement. An initial court ruling in favor of the companies was upheld on appeal, and was ultimately supported by the Superior Court of Madre de Dios, which in September 2010 sentenced four community leaders to six years in prison and fines of about $2,500 each.

“Illegal miners were entering our territory to destroy our community,” Juana Payaba, former president of Tres Islas, who also faced a prison term, said at the press conference. “The palm swamps were drying up and the water was polluted.”

Besides pollution and deforestation, the unauthorized mining camps brought prostitution and contraband trade in gasoline into the territory, she said.

Raquel Yrigoyen, director of the International Institute on Law and Society in Lima, one of the lawyers who took the case to the Constitutional Tribunal, called it a “milestone for Peruvian jurisprudence.”

The case marks the first time that a Peruvian court has ruled that an indigenous community has a right not only to private property, like any citizen, but also to self-determination within its territory, as long as the aim is not secession from the country.

The Constitutional Tribunal ruled that the community’s construction of the gate and guard post “was a legitimate decision made in virtue of its communal autonomy, recognized by Article 89 of the Constitution.” It noted that the same article allows “native communities to make decisions about the use and free disposition of their lands, which implies the ability to decide who enters their territories.”

Although “freedom of movement is a fundamental right, it is subject to certain constraints, such as not invading other people’s land without the owners’ consent,” the decision stated.

In a break from past rulings, the tribunal based its decision not just on International Labor Organization Convention 169 on the rights of tribal and Indigenous Peoples, a treaty that Peru ratified in 1994, but on jurisprudence of the Inter-American Court of Human Rights and the U.N. Declaration on the Rights of Indigenous Peoples.

The Constitutional Tribunal ruled that the lower courts must nullify their rulings to reflect the decision, but Yrigoyen said it will be important to follow up to ensure that all proceedings or court orders against the former leaders of Tres Islas – issued by the prosecutor’s office, the Public Ministry and the police – are canceled.

She said the community would also have to develop a plan for removing illegal miners and loggers who are operating on their lands.

“The ruling poses a challenge for all Indigenous Peoples to reestablish their authority over their territory, against anyone who enters illegally,” Yrigoyen said at the press conference.

Many indigenous communities in the Peruvian Amazon and Andes are involved in conflicts with mining and petroleum companies over the use of resources on their lands. Under Peruvian law, land rights only apply to the surface, while subsoil resources belong to the government, which reserves the right to grant concessions.

A new law – which reflects a key provision of Convention 169 – requires that the government consult indigenous communities about any development project that will affect their territories. The law has not yet been implemented, however. The first consultation is expected to be held in early 2013, and will involve an oil lease in Achuar territory in northern Peru.

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