Last august 20, the Interethnic Association for the Development of the Peruvian Amazon (AIDESEP- abbreviation in Spanish) filed a lawsuit seeking to order the Culture Ministry (MINCUL- abbreviation in Spanish) to respect the fundamental human rights of Indigenous People in Isolation and Initial Contact living in the Kugapakori, Nahua, Nanti and other Territorial Reserve (RTKNN- abbreviation in Spanish), Specifically, AIDESEP seeks to ensure that the current prohibition of new resource extraction rights within the Reserve is respected. Also, AIDESEP asks that MINCUL is ordered to NO CATEGORIZE the RTKNN because this process categorization implicate a reduction in current social and environmental standards of the Reserve and a violation of the collective rights of the indigenous peoples that live within it.
In 2006, the Peruvian government passed the first law which specifically protects the rights of indigenous Peoples in Isolation and Initial Contact (Law 28736). This law stablished a process to update or “categorize” all existing Territorial Reserves in order to became Indigenous Reserves. However, also this law stablishes a loophole for the Indigenous Reserves, allowing for resource extraction rights to be awarded within them, as long as the resource is declared to be in the “public interest” (art. 5°.c of the law 28736).
In this context, in 2017-2018 the Culture Ministry initiated the process of categorization the RTKNN to become in Indigenous Reserve. This process is carried out by creating and approving an Additional Categorization Study, and then signing a new Supreme Decree officially changes the legal category of the area from a Territorial Reserve to an Indigenous Reserve. Despite repeated formal complaints and recommendations submitted by AIDESEP, the MINCUL has not made any guarantee that the process of categorizing the RTKNN will respect the previous bans on new resources extraction rights. In their official responses the MINCUL has simply stated that it is their duty to update all existing Territorial Reserves to became indigenous Reserves, in accordance with the Law 28736. However, the MINCUL has ignored the Constitution of the Republic of Peru and international human rights agreements.
AIDESEP and other organizations civil fear that if the RTKNN becomes in Indigenous Reserve, the government may attempt to use the loophole in the law to award new resource extraction rights even deeper within the Reserve, utilizing the argument that the new Supreme Decree replaced the previously existing Supreme Decree N° 028-2003-AG, and therefore the prohibition on new resource extraction rights no longer applies.
Finally, lawsuit also seeks to declare the article 5.c of the law 28736 as unconstitutional because violates their fundamental human rights to life, health, wellbeing, a healthy environment, etc. This lawsuit was admitted by the Third Constitutional Court of Lima on Monday 15 October, 2018 and was presented with the legal support of the Legal Defense of the Environment and Sustainable Development Institute (IDLADS- abbreviation in Spanish).
