Federación Huaynakana Kamatahuara Kana v. Petroperú SA, Ministry of the Environment, and others, Superior Court of Justice Loreto, Civil Chamber (29 August 2024)

In March 2024, the Mixed Court of Nauta of the Superior Court of Justice of Loreto of Peru ruled in favor of recognizing rights of the Marañón River. The lawsuit was filed by the Huaynakana Kamatahuara Kana, an indigenous federation of Kukama-Kukamiria women in the Northern Amazon region of Peru. The Kukama-Kukamiria people live in the Marañón River ecosystem, and have unique fishing techniques and cultural beliefs deeply connected to this river.

Petroperú S.A. owns and operates the Norperuvian Oil Pipeline, the longest oil pipeline in Peru, construction of which was completed in 1978. A branch of the pipeline follows the course of the Marañon, joins with the main pipeline, and then crosses the Marañon River before continuing across the Andes. Id. at p. 68. Oil spills from this pipeline have caused damage to the environment and the livelihood and culture of the Kukama-Kukamiria people, prompting the federation to file a lawsuit on behalf of the Kukama-Kukamiria people in 2021 against the Ministry of Energy and Mines, Ministry of Agrarian Development and Irrigation, the Peruvian Amazon Research Institute, Petroperú SA, the Ministry of the Environment, and the Regional Government of Loreto.

Decision of the lower court

The Mixed Court of Nauta of the Superior Court of Justice of Loreto heard the lawsuit and released a judgment on March 8, 2024. This judgment declared the Marañón River and its tributaries as rights holders, ordered the Regional Government of Loreto to create Watershed Councils of Water Resources for the Marañón and its tributaries, ordered recognition of the regional government and indigenous organizations as guardians of the River, and ordered Petroperú to prepare and submit a draft update of its Environmental Management Instrument (IGA), including comprehensive assessment of impacts of hydrocarbon transportation through the Norperuvian Pipeline, and prior consultations with indigenous organizations  before approval. Id. at p. 1-2. The Court, however, declared the plaintiff’s demands for enhanced maintenance of the Pipeline unfounded. Id. at p. 2.

The judgment was appealed by both sides. The Civil Chamber of the Superior Court of Justice of Loreto reviewed the appeal on August 29, 2024 and affirmed in part and revoked in part the lower court decision.

Decision of the Superior Court on appeal

The Superior Court affirmed the judgment of the lower court on the issues of standing, declaring the Marañón River and its tributaries as rights holders, ordering the government and indigenous groups to act as representatives of the River, and ordering Petroperú SA to prepare a revised IGA in six months with public participation. The issue of maintenance of the Norperuvian Oil Pipeline was a split decision. The decision on this specific point was not unanimous among the three initial judges ruling the appeal. So, two “tie-breaking” judges adhered to the dissenting vote, forming the majority vote on this issue and reforming the lower court decision to declare that the Kukama-Kukamiria’s claim for maintenance of the pipeline was founded.

Standing

On the issue of standing, the Civil Chamber of the Superior Court affirmed the lower court’s decision that the defendants had standing to act passively, and that the court had jurisdiction to review the subject matter due to its connotations for social and constitutional rights. Id. at p. 9-10.

Rights and guardians of the Marañón River

The Court then turned to the issue of rights for the Marañón River and tributaries. The petition requested the following rights:

i) The right to flow to guarantee a healthy ecosystem;

ii) The right to provide a healthy ecosystem;

iii) Right to flow freely from all contamination;

iv) Right to feed and be fed by its tributaries;

v) Right to biodiversity;

vi) Right to be restored;

vii) Right to the regeneration of its natural cycles;

viii) Right to the conservation of its ecological structure and functions; 

ix) Right to protection, preservation and recovery; and

x) Right to be represented and protected by the State

Id. at p. 10, para. 10.

The Court acknowledged that the request for rights originated from growing pressures on ecosystems and multiple oil spills that have affected the Marañon River. Id. at 11. The Court referred back to an earlier decision by the Constitutional Court that stated that a reading of the Constitution itself “allows us to understand that the environment contains many different elements . . . that deserve protection for various reasons, not all of them exclusively dependent on human interests or needs.” Id. at p. 11, para. 14.4. The Court then referenced decisions made by other countries to recognize rights of rivers, including Colombia’s protection of the Atrato River. Id. at p. 11, para. 15.15. The Court decided it was “not unfeasible” to declare rights for the River, and that “the recognition of rights requested . . . is a necessary alternative to achieve an adequate protection in favor of [the River].” Id. at p. 12, para. 16. The Court concluded with a declaration of legal personality and rights for the Marañón River, with respect to its protection, conservation, maintenance, and sustainable use. Id. at p. 12, para. 17.

The Court affirmed the lower court’s decision to allow entities to act as guardians for the River, as the Court determined this protection was closely linked to the declaration of rights of the River. Id. at p. 12, para. 18. The Court decided that the Regional Government of Loreto has an obligation to protect water management, and to involve the National Water Authority for the purpose of caring for the river and tributaries. Id. at p.13, para. 20. Similarly, the Court designated the state and indigenous organizations as guardians, defenders, and representatives of the River. Id. at para. 21. 

Revised Environmental Management Instrument

The Court also ordered that Petroperu must update its Environmental Management Instrument to include comprehensive assessment of impacts of transporting hydrocarbons, and that native communities must be consulted before the instrument could be approved. Id. at p. 13, para. 22. All of these issues were decided unanimously by the three initial judges ruling on the appeal.

Maintenance of the Pipeline

The issue of maintenance of the Norperuvian Oil Pipeline gave rise to a dissent decision, with the dissent forming the majority opinion. Petroperu argued that they have consistently carried out maintenance activities to ensure the environmentally safe operation of the pipeline, and that the majority of oil spills on the pipeline have resulted from criminal acts by third parties. Id. at p. 68-69. The dissent rejected this argument and pointed instead to numerous recent oil spill incidents and lack of compliance with clean up requirements, for which Petroperu received sanctions. Id. at p. 69-70.

The dissent noted that the impact of oil spills is much greater on the Kukama people and other indigenous groups because they live along the banks of the river and therefore their food security and water supply are directly impacted by these incidents. Id. at p. 76-77. The dissent concluded that due to the combined evidence of oil spill statistics, sanctions against the company, and information from State supervising entities, Petroperu is required to effectively maintain the Norperuvian Oil Pipeline “since the fundamental rights of the Kukama people are harmed by the continuous oil spills that occur.” Id. at p. 77. The Court therefore revoked the lower court judgment on this issue, and required that Petroperu conduct maintenance that is “effective, immediate and integral,” and inform supervising governmental entities of its actions. Id. at p. 78.