By Margaret Janelle R. Hutchinson
Impunity Watch Reporter, South America

 LIMA, Peru – Peru’s highest court, the Constitutional Tribunal, has ruled that an Amazonian indigenous community could limit outsiders’ access to its territory and upheld the principle of communal autonomy.  The Tribunal also ordered lower courts to void the convictions of four indigenous community leaders who had been jailed during their struggle against illegal loggers, miners, and transportation workers.

“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.

The Shipibo and Ese’eja community of Tres Islas, located in the southeastern region of Madre de Dios has been battling destructive trespassers for years.  Illegal miners, loggers and transportation companies have stripped portions of the land and polluted water sources.

When the community put up a gate across a road and posted a guard from the community, two of the transportation companies that served illegal miners brought suit against the community on the grounds that the gate violated the companies’ 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.

The Constitutional Tribunal, based its decision to overturn the lower courts’ rulings on principles from the Peruvian Constitution, International Labor Organization Convention 169 on the rights of tribal and Indigenous Peoples, jurisprudence of the Inter-American Court of Human Rights and the U.N. Declaration on the Rights of Indigenous Peoples.

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.

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.

Although this decision is seen as big win for indigenous rights, advocates caution that there is still much progress to be made.

The ruling only guarantees indigenous communities autonomy over the surface of their land.  Sub-surface resources are still owned by the government, which can grant access to companies wishing to exploit them.

A key provision of Convention 169, which Peru ratified in 1994, is reflected in a new law that would require the government to consult with indigenous communities about any development project that would affect their territories.  The law has not yet been implemented, but the first of such consultations is expected to be held in early 2013.

For further information, please see:

Indian Country – Peru’s Constitutional Tribunal Rules in Favor of Indigenous Community – 2 October 2012

Upside Down World – Peru: Amazon Indians Win Court Case over Land Rights – 28 September 2012

Chicago Times Tribune – Peru top court puts tribal sovereignty ahead of mining, logging – 26 September 2012

Eurasia Review – Peru: Distance Between Government And Indigenous Communities Grows – 26 September 2012

International Labour Organization – Convention No. 169