Two lawsuits to stop Peru’s biggest gas project in indigenous reserve
Operations by gas consortium in Amazon reserve for vulnerable Indigenous peoples met with legal action
By David Hill
Three Peruvian judges are scheduled to meet on 1 April following a lawsuit filed to stop a gas consortium from operating in a reserve in the Amazon created for indigenous peoples living in “initial contact” and “voluntary isolation.”
There are already wells in the west of the reserve where gas has been produced for years, and last month the Energy Ministry approved the Environmental Impact Assessment (EIA) of the expansion of operations involving more wells, a pipeline extension and seismic tests further to the north, east and south.
photo by Brian Ralphs
The lawsuit was filed against the Energy Ministry and the company leading the consortium, Pluspetrol, in August 2013 by the Lima-based Institute for the Legal Defence of the Environment and Sustainable Development (IDLADS). It asks the judge to order, among other things, the Energy Ministry to rescind its approval of the expansion and to ban all oil and gas operations in the reserve:
We request that [the judge] orders the Ministry of Energy and Mines to exclude the Kugapakori-Nahua-Nanti and Others’ Reserve from any kind of promotion, exploration and exploitation of hydrocarbons.
The lawsuit also asks the judge to order Pluspetrol to “refrain from exploring for or exploiting hydrocarbons” in the reserve, and to respond to observations in a technical report on the EIA by the Culture Ministry in July last year which stated that the new wells, pipeline and seismic tests could “devastate” or make “extinct” the reserve’s inhabitants and was subsequently rescinded.
IDLADS claims that operations in the reserve violate the Peruvian constitution, Peruvian law and international law, and the reserve’s inhabitants’ rights to a “healthy and balanced environment”, self-determination, life, health, “ethnic and cultural identity”, “biological and cultural integrity”, dignity, territory, property, ancestral possession and prior consultation.
Almost 75 percent of the gas concession, created in 2000 and called Lot 88, overlaps the reserve, which was established 10 years earlier. In 2003, the reserve was granted greater legal protection by a Supreme Decree “guaranteeing [its] territorial integrity”, banning “human settlements” different to those of the reserve’s inhabitants, banning the “granting of new rights involving the exploitation of natural resources”, and ensuring that “existing rights to exploit natural resources must be carried out with the maximum considerations to guarantee that the rights of the reserve’s inhabitants are not affected”, but operations have continued and two major phases of expansion approved.
“We’re not against the exploitation of gas in Lot 88,” says IDLADS’s president, Henry Carhuatocto Sandoval. “What we’re against is the exploitation of gas in Lot 88 which violates the intangibility of the Kugapakori-Nahua-Nanti Reserve and the fundamental rights of the indigenous peoples living there.”
On 15 August the lawsuit was declared “inadmissible” in a “resolution” by judge David Suarez Burgos mainly on the grounds that it was “beyond the territorial competence of a Lima Constitutional Judge.”
IDLADS appealed and the case is now due to be considered on 1 April by three judges from the “1st Sala Civil” within the Superior Court of Lima. IDLADS wasn’t notified of Suarez Burgos’s verdict until October 2013, and a “Sala Civil” “resolution” announcing the April hearing is stamped 28 January – the day after the Energy Ministry approved the EIA of the new wells, pipeline and seismic tests.
The gas in Lot 88 comes from two gas fields to the north and south of the River Camisea, and the Camisea gas project – as operations there and neighbouring concession Lot 56 are known – is Peru’s largest energy development and plays a key role in Peru’s economy. Three of the four producing well locations in Lot 88 are in the reserve and, according to the state oil and gas agency Perupetro, Lot 88 accounted for 43% of Peru’s natural gas output in 2012 and 43% between January to November 2013.
“We think our request [prohibiting operations in the reserve] is realistic,” says IDLADS’s Lilyan Delgadillo. “If the contract for Lot 56 [which has produced even more gas than Lot 88 in recent years] was renegotiated, the internal national demand for gas could be easily met and the pressure on indigenous peoples’ territories and protected natural areas would be reduced.”
IDLADS also filed a lawsuit in August 2012 against the Energy Ministry and the Culture Ministry after the former approved the EIA of plans to build new wells at a location called San Martin Este, approximately 10 kms further east into the reserve than the then existing installations.
This lawsuit requests that the judge, among other things, declares various laws “inapplicable” and orders the Energy Ministry to rescind its approval of the San Martin Este EIA and to ban the Kugapakori-Nahua-Nanti and Others’ Reserve from all hydrocarbon activity. It also requests the judge orders the Culture Ministry to “adopt suitable measures to protect these vulnerable groups which implies respecting the intangibility of their territory and to ensure that extractive activities by third parties are prohibited in the reserve.”
The August 2012 lawsuit was declared “inadmissible” in a “resolution” in September that year by judge Henry Antonino Huerta Saenz, who only took into account the request to declare various laws “inapplicable” and ignored the rest. After IDLADS were notified in December, they appealed.
“The judge didn’t consider all of what we were asking for,” says IDLADS’s Katherine Serrato. “He limited himself to just one thing.”
The response to IDLADS’s appeal was to suspend the September “resolution” and pass the case to a “Sala Civil” within the Superior Court of Lima, although IDLADS wasn’t notified until October 2013 and the “Sala Civil” is now “approximately four months late” in responding, according to Serrato.
During this process, Pluspetrol has been building its wells at San Martin Este, according to members of local communities, company workers and a financial report of one of its subsidiaries.
Asked by The Guardian about the pending lawsuit, the Culture Ministry provided a statement saying that “it has been declared inadmissible and has been appealed” and the Ministry is protecting the reserve’s inhabitants:
In terms of the indigenous peoples in isolation and initial contact living in the Kugapakori-Nahua-Nanti Reserve, the [Culture Ministry’s] technical report on the Environmental Impact Assessment of the Expansion of Activities in Lot 88 has ensured that precautionary measures will be taken to guarantee their rights to life and integrity. . . It is important to highlight that the standards and obligations imposed on the company have been the subject of dialogue with national and regional organizations.
The Culture Ministry makes this claim despite serious criticism of its approval of the EIA and the potential impacts on the reserve’s inhabitants. Earlier this month more than 25 Peruvian and international organizations, together with various individuals including two congresswomen, wrote to Peru’s president Ollanta Humala stating that the Ministry was using out-of-date information about the health of the reserve’s inhabitants and was ignoring recommendations made in December by the UN’s Special Rapporteur for Indigenous Peoples to effectively suspend the expansion.
National indigenous organization AIDESEP, which claims to represent more than 1,400 indigenous communities in the Peruvian Amazon, was even more critical. It issued a statement referring to “ineffective and ornamental “protection” measures” and promising to hold the Peruvian state, the gas companies and the Inter-American Development Bank, which has played a key role in the Camisea project to date, responsible “if one more isolated brother dies” “in the name of supposed progress.”
Both IDLADS lawsuits also asked the judges to order that the Environment Ministry or an “international entity” is involved in the approval of plans for these projects, and to order the Energy Ministry to comply with an international law ratified by Peru which gives indigenous peoples’ the right to be consulted about projects which may directly affect them.
Despite providing gas, generating huge revenues and using an “off-shore inland” infrastructure model – helicopters only, no roads, in order to minimize the impacts on the rainforest – the Camisea gas project has been severely criticized on both environmental and social grounds.
The recently-approved expansion has generated particular controversy over the last couple of years, with the UN’s Committee for the Elimination of Racial Discrimination in March 2013 calling for it to be suspended, the Culture Minister and other ministry personnel resigning, and indigenous organizations AIDESEP and FENAMAD criticising it at a hearing at the Inter-American Commission on Human Rights in Washington last November.
The indigenous peoples most at risk from operations in the reserve are those in “voluntary isolation” who have very little or no contact with outsiders, including the Kirineri, some Nanti and possibly another group.
Pluspetrol’s partners in the consortium are Hunt Oil, Repsol, Tecpetrol, SK Innovation and Sonatrach, according to Perupetro.
Pluspetrol and the Energy Ministry did not respond to emails for comment.