Peru's Marañón River Wins Recognition of Rights and Indigenous Guardianship in Court
Earth Law Center (ELC) celebrates an important victory obtained for the Marañón River on March 18, 2024. The Kukama Indigenous women of Santa Rita de Castilla, and legal nonprofit Instituto de Defensa Legal (IDL), obtained a historic ruling recognizing the river as a holder of inherent rights—the first such ruling in Peru. With ELC’s Latin America Legal Program having supported the case since its inception, we are thrilled to see this development.
In a decision that will reverberate for years through Peru and the international environmental community, the judge representing the Mixed Court of Nauta ruled in favor of the Federation Huaynakana Kamatahuara Kana (HKK), an association of the Kukama people based in the heart of the Peruvian Amazon, who have defended the river from oil spills for more than a decade.
In the application for protection in the case, the Kukama women, through the president of their federation, Mrs. Mariluz Canaquiri, requested the court to recognize the Marañón River as a subject of rights and for its intrinsic value. In the worldview of the Kukama people, the river is a living being that is home to different forms of life, as well as the Kukama ancestors.
The Kukama women also requested that a basin council be established so as to bring Indigenous communities into the decision-making process in relation to the conservation and protection of the river. The members of HKK have now been appointed guardians of the river, and the oil company Petroperú has been ordered to update its environmental management plan and to better maintain the oil pipeline that for years has contaminated the flow of the Marañón River.
The defense of the case has been carried out since 2020 by lawyers Juan Carlos Ruiz and Maritza Quispe from IDL, which advises and supports the legal defense of Indigenous peoples and communities in Peru. The request for protection that IDL drafted was key to giving a voice to the Kukama women so that they could participate in the legal process to protect the river that they consider to be sacred.
Constanza Prieto-Figelist and Javier Ruiz of the ELC Latin American Legal Program have been involved with the river defenders in several ways, including running a capacity development workshop in November 2023 in the Kukama territory of the Amazon. The workshop’s aim was awareness and skill-building regarding the exercise of rights of access to information, participation, and justice in environmental matters—all of which are aspects of the implementation of the Escazú Agreement, a regional environmental treaty involving several dozen nations in Latin America and the Caribbean.
Prieto-Figelist and Ruiz have supported the case itself since its formulation and, together with Monti Aguirre of International Rivers (IR), led one of the three amicus curiae briefs that were presented at the November 2023 hearing of the trial. Other organizations, including the Global Alliance for the Rights of Nature; the Justice and Corporate Responsibility Project; the Center for Environmental Law, based at the University of Victoria, Canada; and the University of Essex, United Kingdom, joined the specialized briefs.
Javier Ruiz, ELC’s environmental policy and climate change specialist, was present at the hearing in Nauta on November 9, 2023 to explain the importance of recognizing the rights of the Marañón River. He also emphasized the urgency of applying the precautionary principle in environmental matters—the idea that judges should rule against practices or developments whose impact on the environment presents uncertain but plausible risks—to help guide a decision in favor of the river and the Kukama women.
The amicus curiae presented by ELC and IR clearly had a positive influence on the case. The judge applied the precautionary principle in the face of serious threats to the Marañón River, such as continued oil spills from and lack of maintenance of the Petroperú company’s oil pipelines. She also made use of the consultative and jurisprudential criteria of the Inter-American Court of Human Rights to establish a legal link between the right to a healthy environment and the rights that were recognized for the Marañón. Furthermore, she made reference to the applicability of the international standard of human rights of Convention 169 of the International Labour Organization’s Indigenous and Tribal Peoples Convention.
Highlights of the Ruling
In the resolutions of the sentence, the judge declared the Marañón River and its tributaries as the holder of the following inherent rights:
The right to flow;
The right to exist in and support a healthy ecosystem;
The right to flow free from all contamination;
The right to feed and be fed by its tributaries;
The right to biodiversity;
The right to be restored;
The right to the regeneration of its natural cycles;
The right to the conservation of its ecological structure and functions; and
The right to protection, preservation, and recovery.
She ordered the Peruvian State to recognize and protect the aforementioned rights, and further ordered that the Regional Government of Loreto (GOREL) carry out the pertinent procedures before the National Water Authority for the creation of a water resources basin council for the river and its tributaries, urging the authorities to include the participation of Indigenous communities.
She named the Indigenous communities and the Peruvian State through its authorities as guardians, defenders, and representatives of the Marañón River and its tributaries.
The judge also ordered the Petroperu company to prepare and present an updated Environmental Management Instrument within a period of six months, stipulating that said instrument include a comprehensive evaluation of the impacts that the company is making upon the river in carrying out transportation and hydrocarbon activities. She likewise ordered the company to assume commitments regarding environmental and human rights, including consultation with Indigenous peoples about updating its environmental instruments.
Elements of Indigenous worldview and human environmental rights in the ruling
There are two points that we must take into account to understand why rights were recognized for the Marañón River, when so many other such cases have not succeeded.
The first point is that the plaintiffs are Indigenous women, which meant not only the inclusion of an Indigenous worldview in the court case but also the pertinence of a body of legal work related to Indigenous human and environmental rights. Currently, the Kukama territory is made up of the lands located on the Huallaga, Marañón, and Nucuray-Pavayacu Rivers within the Alto Amazonas Province in Loreto, Peru, and there is a second, eastern block located in the Pacaya and Samiria Rivers around the National Reserve of that name and in the Puinahua channel in the lower Ucayali. The Kukama culture and worldview has an aquatic orientation, in which the Marañón River is a living being and is conceived as an entity that harbors life. The first ancestor of the Kukama lineage is said to have been born from the river, and the Marañón is the vertebral column that articulates their culture and identifies them with the territory adjacent to the river.
There is an extensive body of work related to human rights of Indigenous peoples applicable to the Latin American region. The international system recognizes the rights to culture and territory of peoples, such as ILO Convention 169, and the United Nations Declaration and American Declaration on the Rights of Indigenous Peoples. Likewise, the Inter-American Court of Human Rights on repeated occasions has issued binding jurisprudence regarding the effects on the environment, culture, water, and territories of Indigenous communities. This new ruling on the rights of the Marañón thus has a solid basis in the standards of cultural and territorial rights of Indigenous peoples and sets a new precedent for future cases.
The second point is that the judge in the case relates constitutional human rights already recognized in the Peruvian Constitution to the Rights of Nature. The main starting point is the criterion set by the Inter-American Court of Human Rights in its Advisory Opinion 23/17, which holds that the right to a healthy environment must protect the elements of Nature for their intrinsic value and that it is possible to recognize Nature’s rights.
In addition to developing the constitutional content of the right to a healthy environment based on the standard set by the Inter-American Court of Human Rights, the judge set the ecological scope of her ruling in relation to the Constitution of Peru. The Constitutional Court of Peru issued a ruling in case 322/2023, stating that biocentric and ecocentric approaches to the protection of Nature have constitutional validity. Taking this argument into account, as well as the language regarding intrinsic value of Nature adopted in the new Kunming-Montreal Framework’s Convention on Biological Diversity, the judge recognized the rights of the Marañón River.
This ruling is a critical first step toward vindicating the rights of the Kukama people, marking positive progress in the fight undertaken by Indigenous women in Peru and beyond. “In our worldview, rivers are sacred, but with oil pollution we saw how they were damaged by heavy metals and the population became sick,” said Mariluz Canaquiri. “That is why we ask that their rights be respected.”
For IDL lawyer Juan Carlos Ruiz, the sentence is very important: "Because by recognizing rivers as living entities with rights, the actions of the State are constrained. That is to say, it will make any State action that puts rivers in danger subject to nullification."
“We are very happy to receive the ruling, it is the first in Peru to recognize an element of nature with its own rights,” said ELC’s Javier Ruiz. “It is a ruling that provides justice for the Kukama women and their people, recognizes them as guardians and defenders of the river, in addition to ordering that they be consulted in accordance with the standards of ILO Convention 169.”
ELC will maintain its commitment to supporting the legal defense of the Marañón River and its Indigenous women defenders. The ruling from the court is a first-instance resolution that can still be appealed by the Peruvian authorities and that will require extensive legal work and support from all allies in the case.
Consult the ruling [Spanish]
For further reading on this case:
Historic ruling recognizes the Marañon River as a subject of Rights
Historical event in the Amazon: Kukama women get Peru to recognize the rights of a river
Loreto: judicial ruling declared the Marañon River as a subject of rights
Historic ruling: The Peruvian Court recognizes the rights of the Marañon River
Historical judgment: Peruvian Court recognizes rights over the Marañon River
After Years of Indigenous-Led Campaigning, Court Grants Rights to Peru's Marañón River
Historic ruling: Loreto Court recognizes the Marañon River as a subject of rights
Historic ruling: Peruvian Court recognizes rights over the Marañon River
Historic ruling recognizes the Marañon River as a subject of rights
Rights of Nature granted to one of the River Amazon’s main sources
