In Peru, the path to achieving rights of nature winds like the rivers it seeks to protect

Ketty Marcelo, a Peruvian leader from the Asháninka Indigenous community of Pucharini, grew up by the Perené River, 165-kilometer flow of water along the eastern Andean mountains. Instead of playing in city parks, she spent her childhood swimming and rafting in these waters. “It was like playing with my little brother,” she recalls.

Marcelo’s children, however, have not been so fortunate as to have this natural playground. Since 2010, mining and electricity companies have dammed and polluted the Perené, causing massive amounts of its fish to die off and its waters to run dirty and toxic. “It’s like watching your brother die,” she laments. “Of course, [the river] had the right to live. For us it’s like a human being.”

In 2011, the deterioration of the Perené inspired Marcelo to join a resistance movement against San Ignacio de Morococha (SIMSA), the mining company most responsible for the pollution. This moved her, in 2021, to join with 30 other Indigenous women who traveled from across the country to Lima to demand parliamentary approval of a certain bill: Bill 6957, which would legally recognize Mother Nature, ecosystems and species as rights-holders and subjects for state protection.

Prepared by the National Organization of Andean and Amazonian Indigenous Women of Peru (ONAMIAP) along with other national organizations and institutions and advanced in parliament by former congressman Lenin Bazán, the bill seeks to enshrine a legal shift from viewing nature as an “object” to a “subject.” The bill reflects the times: this particular awareness has always remained at the core of Indigenous cultures that rely on nature for their continuity, but it is now also becoming more mainstream, as people increasingly recognize the grave disasters that incur when nature is viewed as a subordinate rather than an equal.

Some governments are indeed recognizing the rights of nature. Ecuador gave nature rights in its national constitution in 2008 and was subsequently joined by the governments of Bolivia and Colombia in doing so. Elsewhere in the world, Uganda, New Zealand, Bangladesh, India and certain states of the U.S. have adopted different forms of nature’s rights as well. While these rights of nature laws apply to ecosystems holistically, they’ve often been driven by threatened water sources and communities’ access to a clean water supply.

Peru’s Bill 6957 was ignored when it was first put forth but now waits on the docket of the new parliament, which assumed leadership in late July 2021. If it goes through, Peruvian citizens will be able to legally defend the environment and seek reparations for harm done to it, just as would be the case for another person.

“The truth is that they’re afraid of it because it entails a paradigm shift,” says Melania Canales, ONAMIAP’s president, of the opposition that some lawmakers and public bodies have shown to the bill so far. But despite the barriers against the initiative to pass this bill, recent discussions on its contents have for the first time shined light on the possibility of a new chapter for Peruvian environmental regulation.

The waterworld

For nearly 50 years, oilfields have been operating in the Pastaza, Tigres, Corrientes, Chambira and Marañón river basins of the Peruvian Amazon. In the Shapajilla Indigenous community in the Loreto region of the Amazon basin lives Mari Luz Canaquiri, a Kukama village leader who is fighting for the remediation of the systematic oil spills.

In addition to contaminating her community’s drinking water, lessening their fish stocks and causing disease, the spills have also put the spiritual and cultural survival of the Kukama people at risk. For the Kukama people, when a person passes away, they move to the waterworld, where there are cities inhabited by the karuara – “people from underwater” in the Kukama language.

“When we sail the river, [the karuara] see us, just as we see an airplane,” explains Canaquiri. “And when there are oil spills, they are also affected.” This degradation, she says, is causing some Kukamasto move out of their ancestral territories. “The river is more than a source of water; our lost relatives live there, and so we cannot allow it to be damaged.”

Along with other women from her organization Huaynakana Kamatahuara Kana (“Working Women”), Canaquiri contacted the Legal Defense Institute (IDL), a Peruvian legal aid NGO that is advising them on filing a lawsuit to declare the Marañón River and its tributaries as rights-holders, protected from future injuries of the oil industry.

The lawsuit calls for the “maintenance of the northern Peruvian oil pipeline by the management company Petroperú and updating of the environmental management instrument for activity in the area.”

“We took the case of the Atrato River as an example,” says Juan Carlos Ruiz, a lawyer and coordinator of IDL’s Indigenous peoples and constitutional litigation, in reference to the 2017 ruling in Colombia that declared, for the first time in the country, that a river is a rights-holder.

They are also proposing that the National Water Authority (ANA) set up the Marañón River Interregional Basin Council with the participation of Loreto’s Indigenous organizations, which would involve them in decision-making processes and considered as guardians and representatives of the river and its tributaries.

“The level of pollution, defenselessness and lack of protection of water sources is why they are resorting to these types of mechanisms,” says Ruiz.

Local precedents

The courts are not the only way to achieve the goal of protecting nature, says Ruiz: “There is an option that is more political. We have two municipalities in the Puno region that have already recognized the rights of nature.”

In 2019, the Melgar provincial municipality in southern Peru became the country’s first subnational government to recognize water sources as rights-holders worthy of protection by issuing an ordinance granting legal personhood to the Ayaviri River and Llallimayo basin. Although mining has stopped, the population was continuing to suffer the ravages of the environmental liabilities accumulated in the upper part of the basin from years past, which affected their health and main sources of income – livestock and crop production.

Driven by the ordinance, representatives from Ayaviri and the other three affected districts are working together toward a state-wide remediation plan and strategy to ensure the conservation and sustainable management of the river.

“With this initiative we’re also seeking to set a precedent for neighboring provinces and to guide a national strategy,” says the municipality’s councilwoman, Indira Cahuna. And it’s working. In December 2019 the District Municipality of Orurillo, also in Melgar, issued an ordinance recognizing “Mother Water,” the Yaku Unu Mama, as a rights-holder within its jurisdiction, which protects all natural water sources within its geopolitical borders.

“Sooner or later the rights of nature will have to be recognized, either through the courts, legislative reform or constitutional reform,” says Ruiz. He contends that the latter is not needed to approve Bill 6957 forwarded by ONAMIAP, as some detractors have pointed out, but rather a legislative reform. “Rather than an autonomously configured new right, this is part of the content of a right that has already been recognized [in the Constitution], which is the fundamental right to enjoy a balanced environment appropriate for life.”

Towards buen vivir

According to Marcelo, opponents of Bill 6957 have argued that its approval would paralyze extractive activities and halt development. However, she clarifies that the aim is to “seek out alternatives in a move toward buen vivir” – a way of life centered on community wellbeing – recovering the ancestral knowledge that for centuries enabled native peoples to live in harmony with nature.

“In practice, non-consented infrastructure works such as roads cause excessive extractivism, drug trafficking, squatting and illegal logging in our communities,” she says. In recent years, this has caused socioenvironmental cases to constitute 64.9 percent of all social conflicts in Peru.

Outgoing Congressman Lenin Bazán explains that this bill seeks to provide a better framework of legal and court protection and better design of public policies for the management of nature. “The bill provides legitimacy to act, confers new powers on the Ministry of Environment and sets prohibitions, which will be coupled with those already established in each sector involved,” he explains.

“The importance of the law goes beyond the Indigenous worldview,” stresses ONAMIAP president Melania Canales. “When we talk about land and the environment, we are referring to every human being. We all want to live in health and wellbeing.”