In a recent edition (5 January), Servindi highlights the claims of the Wampis nation in northern Peru to be officially recognised as an indigenous territory. The Wampis are hopeful that the Constitutional Tribunal (TC) will still extend legal recognition, following a negative ruling last year on the case presented to it by the governor of Loreto.

One of the effects of Peru’s 1979 Agrarian Reform was to award indigenous peoples the right to apply for title to their lands, but on a community basis and not as self-governing territories, as is the case in Colombia and as should apply in Peru by international law.

Hundreds of communities took advantage of the opportunity only to find themselves embroiled in tedious and costly bureaucratic procedures that left them with limited extensions and rights to their ancestral lands. Excluded were all sub-soil rights and the greater part of the forest in which they were endowed with limited rights to usufruct. The government retained the right to award concessions to national or international third parties for the extraction of minerals, wood and oil.

In 2013, the Wampis, a group of the northern Amazon bordering Ecuador, with a population of 15,300 living in 22 titled communities, established the autonomous Wampis nation, availing themselves of the UN’s 2007 Declaration of the Rights of Indigenous Peoples.

The case brought by the Loreto governor before the TC sought to give legal status (personaría jurídica) for indigenous territories rather than communities. This would have clarified which land is indigenous and which is not. Working community by community (there are 400 or more in the Loreto region) would take decades; recognising territories would have been far speedier. The governor was primarily interested in establishing what land was not indigenous and thus ripe for development.

In 2018, the Constitutional Tribunal (TC) denied indigenous peoples the right to be legally recognised beyond the level of the community. It appears the case brought by the governor ignored the fact that the TC could not alter the basic architecture of the Peruvian state, based (in descending order) on the nation, region, province and district.

For the Wampis and their lawyers it’s now back to square one. They have, however, the advantage of Peru’s formal commitment to indigenous self-determination under ILO Convention 169 and the American Convention of Human Rights. Also, their cause will be well served by the newly elected President of the TC, Marianela Ledesma, whose grasp of the case and the legal issues involved is considered the strongest amongst her peers. The hope is that she may find another point of law that can interpret the constitution in another way.

The case is of crucial importance to all the indigenous peoples, as it can help overcome the current imbalance of power between individual communities and the government and extractive operations, leading potentially to higher standards of accountability on all sides.