Marañon River rights recognized by a landmark decision in Peru

Source: julioeballes@gmail.com

Yenny Vega Cardenas,
Ph.D., Lawyer & President, International Observatory on Nature’s Rights

Patricia Urteaga,
Law Professor Pontificia Universidad Católica del Perú, Research associate, IONR

Alberto Salazar,
Professor, Carleton University, Canada, Research associate, IONR

On March 8, 2024, the Marañón River in Peru was recognized as a right holder by the Superior Court of Justice of Loreto (Peru), which resolved an amparo (Action of Protection) lawsuit filed by MARILUZ CANAQUIRI MURAYARI, member of the Kukama indigenous people of the Shapajilla Native Community and President of the HUAYNAKANA KAMATAHUARA KANA FEDERATION against PetroPerú S.A., the Ministry of the Environment, and other state actors. The plaintiffs were supported by the NGO Instituto de Defensa Legal.

The petitioner requested the Court to recognize the Marañon River and its tributaries as a subject of rights due to the intrinsic value of the river in their culture and, especially, due to the spiritual value of the river for the Kukama indigenous people. 

The Marañon River is one of the most important rivers in Peru. It is the second longest river in Peru and one of the tributaries of the Amazon River. The Marañon River has a unique terrestrial and aquatic diversity, and flows through the territories of indigenous peoples and mestizo populations that inhabit its banks. These riverside populations derive their livelihoods from the river, where they fish and consume freshwater for their subsistence. The Kukama are considered excellent fishermen.

The lawsuit was  filed in the context of constant oil spills along the Marañón River from cracks in the northern Peruvian oil pipeline that crosses these territories. For decades the Kukama women and their families have been suffering from the contamination of the river and its tributaries with oil, which is affecting their health and that of the inhabitants of nearby communities. Heavy metals have been found in the blood of the Kukama inhabitants of some riverside communities. Faced with this situation, the Kukama have developed several strategies. Some communities have even requested precautionary measures from the Inter-American Commission on Human Rights. However, little has been done by the authorities to prevent the damage.

Young men with oil smeared bodies

Source: Infoamazonia.org, 2014.

The petitioner requested  that 11 rights be recognized for the river, including the right to be free of all contamination; the right to the conservation of its ecological structure and functions; and the right to be represented before the courts and administrative actions, among others. In this regard, it also requested that a collegiate body be appointed to represent the river, in which both the State and the indigenous organizations act as representatives. It was noted that these actors  are already acting as guardians and defenders representing the Marañón River and its tributaries, and can make their voices heard whenever a project may directly or indirectly affect the river.

The lawsuit and the numerous documents submitted by various organizations supporting the plaintiff invoke the importance of the judicial system to evolve in the interpretations of Peru’s legal and constitutional norms. Although this legal  framework does  not recognize the paradigm of the rights of Nature and the legal personhood of rivers, it embraces  the importance and urgency of adopting a paradigm that better protects Nature. Therefore, a call is made to consider  the intrinsic value of natural entities in the context of a Peruvian Constitution that is regarded as ecology-friendly. . Likewise,  a conventionality control was also requested in order to consider  the decisions of the Inter-American Court of Human Rights, which has recently delved deeply into the ecocentric perspective since the Advisory Opinion OC-23/17. This high Court has consistently  highlighted the interdependence between culture, territories, and the rights of indigenous peoples, noting that the traditional practices of indigenous peoples and their cultural identity are compatible with the sustainable use of the environment. It also invoked the provisions of the Framework Convention on Biological Diversity and particularly Decision CBD/COP/DEC/15/4 of the new Kunming-Montreal Global Biodiversity Framework adopted in December 2022.  The  latter document explicitly integrates the rights of Mother Earth or Nature as an innovative vocabulary of the Convention and as one of the values to be incorporated into the decision-making seeking to protect and improve the overall state of biodiversity.

Marañón River

Source: Authors.

 
The Court, finding  the petition well founded, upheld the rights of the Marañon River and its tributaries, recognizing it as the holder of the following rights:

In addition to taking a major step forward in acknowledging the symbolic value of the river as a holder of rights, the decision elaborated on concrete aspects that contribute to implement  the recognition and care of the river. Thus, both the State and the indigenous organizations are recognized and named as guardians, defenders and representatives of the Marañón River and its tributaries.

The Court also mandated the creation of Basin Councils, which should include indigenous peoples with decision-making capacity for each tributary river. Finally, PetroPeru was ordered to prepare and submit its updated Environmental Management Instrument (EMI or IGA in Spanish) to the Ministry of Energy and Mines. This EMI should incorporate a comprehensive environmental impact assessment of the hydrocarbon transportation activity through the North Peruvian Pipeline. The company is also expected to commit to mitigating any negative environmental impact as well as to conduct prior consultations with the indigenous institutions and organizations in order to coordinate the approval of the EMI (IGA).

Houses on the water on the Maranon River

Source: Authors.

 
Boat sailing in the waters of the Marañón River

Source: Authors.

 

This demonstrates that the enshrinement of the rights of Nature can have a significant impact on the obligations of companies with respect to the environment. As such, this case sets an important precedent for extractive companies in Peru. It will be crucial to assess the effectiveness of these Court-mandated obligations. For example, it is imperative to ensure that the company’s environmental assessment is adequate and transparent, and that the Ministry performs its oversight role appropriately. It is also expected that prior consultation with indigenous organizations will be effective, allowing these organizations to integrate their  perspectives and interests meaningfully and to monitor the overall compliance with these obligations.

Thus, the decision not only recognizes the river as a holder of rights, but also proposes solutions that can operationalize these rights, thereby protecting  the river from the multiple oil spills caused by the oil industry. This environmental degradation has endangered the health of vulnerable indigenous communities, whose voices have been ignored for years.  A swift and efficient establishment of the basin council and the river guardians commission is vital to realize the full potential of this historic decision. This will mark a new paradigm for river rights  in Peru.

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