In Peru’s northern Amazon rainforest, across a million acres known as Lot 1AB, a parade of foreign oil companies have for over 50 years drilled, spilled crude and dumped billions of gallons of toxic “production water” on the once pristine land.
Throughout that time, the firms have largely evaded responsibility for cleaning up the mess or compensating Indigenous communities harmed by the devastation, leveraging a global patchwork of advantageous laws that emphasize economic growth and what lawyers for those communities call the “commodification” of nature.
Now, a federation of Kukama Indigenous women in Peru, the Huaynakana Kamatahuara kana, are fighting back by shifting the legal paradigm, demanding in a September lawsuit that the Peruvian government grant and recognize the legal rights of nature by ensuring that the Marañón River, downstream from Lot 1AB, is able to exist, to flow, to live free from contamination, to feed and be fed by its tributaries and to be protected, preserved and restored.
The lawsuit comes as part of a burgeoning rights of nature movement in response to what proponents see as the failure of the world’s dominant anthropocentric, or human-centered, legal systems to combat climate change, protect the global environment and compensate those harmed by its destruction.
Globally, rights of nature legislation, judicial rulings and constitutional amendments have emerged in Canada, Mexico, Colombia, Bangladesh, Bolivia, India, New Zealand, Ecuador and Uganda, among other countries.
In Peru, another coalition of Indigenous women, the National Organization of Indigenous, Andean and Amazonian Women of Peru (ONAMIAP), is lobbying the government to recognize the rights of nature in national legislation. Meanwhile, two local governments, the municipality of Orurillo and Melgar province, have enacted ordinances that give legal rights to waterways and other parts of nature.
The groundswell behind Peru’s rights of nature movement follows neighboring Bolivia, Ecuador and Columbia, which recognize the rights of nature in national legislation, constitutional provisions and court rulings, respectively.
“We demand nature be recognized as a living entity because it is a living entity,” said Melania Canales Poma, president of ONAMIAP, in an interview with Inside Climate News translated from Spanish. “Everything that exists on the planet has life. All that exists on Mother Earth is alive. That is why we humans are alive. We are part of nature.”
At the same time, a similar reaction to the world’s legal failure to address climate change and environmental destruction is powering another nature-centric legal movement to make “ecocide”—the widespread destruction of the environment—a crime within the jurisdiction of the world’s International Criminal Court. If the countries that are members of the court adopt ecocide as a crime, it could be the first time that international criminal law protects the Earth as a subject in its own right.
In Peru, the ideas behind granting rights to nature are grounded in the Andean concept of buen vivir, which roughly means living in a way that is in harmony with nature and respects other cultures and beings.
“It is not possible for the life and well-being of humans without the well-being of all forms of life in general that exist on Mother Earth. Humans survive because of the other forms of life,” Melania Canales said.
What Is a River?
Miguel Angel Cadenas, a Catholic Bishop in the North Peruvian town of Iquitos, remembers the first time he witnessed an oil spill over 20 years ago.
He was in Santa Rita de Castilla, a small rural town on the bank of the Marañón River, south of Lot 1AB. The town, mostly inhabited by Indigenous peoples, is a transit point for ships that transport supplies to and from the drilling sites. The screeching and booming industrial activity alone had already disrupted the once tranquil riverside town.
Then the stench blanketed the town, and a thick layer of crude oil turned the largest tributary of the Amazon River jet black.
“It was terrible because it prevented the sun from penetrating into the water which profoundly altered the ecosystem, causing the death of living beings inside the river like fish and aquatic plants,” Cadenas told Inside Climate News in Spanish.
Instead of removing the oil, the government used chemicals to sink the contamination to the bottom of the river, affecting the health of the river, aquatic animals and the community for years to decades, according to Cadenas.
The spill was devastating for the local Kukama people. For thousands of years, their ancestors drank the river water. But when the pollution came, they stopped, triggering an unprecedented cultural shift. Fishermen and the women who sell their catch lost their livelihoods due to the stigma associated with the spill.
“The sense of smell for the Kukama people is different,” Cadenas said. “They have a much more developed sense of smell….[and] say that the smell stays in their nostrils and does not allow them to breathe or live.”
Cadenas said he supports the Marañón River lawsuit, adding that the community would have filed the case earlier but couldn’t find lawyers to help them. He believes that granting legal rights to nature is a way of integrating the vision of Indigenous peoples into Western law.
“What are called the ‘rights of nature’ raises the question: What is a river? For a Westerner, it is a stream of water that flows into another river or into the sea,” he said. “For an Indigenous person, the river is a living being where other living beings reside.”
Upstream from Santa Rita de Castilla, Lot 1AB sprawls across a million acres of rainforest.
In 1971, without the consent or input of affected communities, U.S.-based Occidental Petroleum purchased the rights to drill in the lot from Peru’s government. At the time, the country had few environmental regulations to hold the company accountable and later, what laws were put on the books were largely ignored, according to Indigenous groups and researchers.
The company routinely dumped untreated toxic “produced water,” a byproduct of oil production, which was then a legal practice, and failed to properly maintain infrastructure like pipelines, Indigenous groups say. The once balanced ecosystems in and around the lot soon became contaminated with heavy metals, oil and other pollution.
In the late 1990s, Peru’s environmental regulation agency told Occidental it had to abide by new environmental standards. By 1999, the company sold its interest to the Argentinean company Pluspetrol without cleaning up the lot. Occidental maintains that Pluspetrol assumed responsibility for the cleanup and in a written statement denied all allegations regarding production-related contamination from its operations in Lot 1AB.
While the harmful effects from the dumping of production water were widely known and outlawed in many countries at the time Pluspetrol took over operations, the company continued with the practice until 2009, arguing that it was complying with Peruvian law. Over the course of a decade, the company dumped over 1.5 billion barrels of produced water in the lot.
Cadenas, who has witnessed the ecological harm produced water dumping has caused, described it as a form of “slow violence.”
“It is not spectacular like an oil spill, it does not attract attention. But it has long-term repercussions,” he said. “Rivers, fish and birds are all dynamic, they flow and move. The contamination goes far beyond the localized points.”
A bevy of research reports substantiates those claims, finding that animals are drawn to the salty produced waters and the same heavy metals present in the dumped water are found at unsafe levels in people living nearby.
By 2006, the pollution had become so bad that Indigenous communities staged a two-week long blockade of Pluspetrol’s operations, forcing the company and the government into negotiations that resulted in legislation known as the Dorissa Act that required the company to reinject produced water underground, rather than dump it.
Mari Orta-Martinez, a researcher based in Paris who has been studying the effects of oil extraction on Peru’s Amazon rainforest for decades, said soon after that legislative victory, he witnessed Pluspetrol ships and vehicles transporting large amounts of alcohol into local communities.
The alcohol was “gifted” to people living near drilling sites, he said, and was intended to weaken the tribes’ resolve and cohesiveness. Soon after, Orta-Martinez and other researchers documented previously unseen social upheaval in those communities, such as addiction, domestic violence and increases in sexually transmitted diseases.
The company went on the offensive in other ways, he said, engaging the communities one by one instead of through their coordinated representation. Pluspetrol negotiated agreements whereby communities released the company from all past and future injuries caused by the drilling. In exchange, communities received meager amounts of provisions like school supplies and small infrastructure improvements, according to Indigenous groups.
Pluspetrol did not respond to requests for comment.
‘There’s Only So Much Litigation Can do to Solve These Problems’
In 2007, as Pluspetrol was operating in Lot 1AB, a group of Indigenous communities sued Occidental in U.S. federal court for contamination of their homeland between 1971 and 2001.
It took the parties six years just to resolve the question of whether the case could remain in U.S. court, an issue decided in favor of the Indigenous communities. So when Occidental offered the Peruvian communities a $19 million settlement to compensate them for their injuries, they agreed, according to their lawyer Marco Simons, General Counsel at EarthRights International.
Occidental made no acknowledgment on the record about its responsibility for the ecological damage to Lot 1AB and took no steps to remediate it.
Around the same time the Occidental lawsuit was settled in 2013, Pluspetrol told the government it would cease operations in Lot 1AB in 2015. The Peruvian government began to pursue Pluspetrol for remediation of nearly 2,000 contaminated sites. Pluspetrol offered to remediate fewer than 50 and argued that Occidental was responsible for the bulk of the pollution in Lot 1AB.
Meanwhile, people living in and near the lot continued to get sick and the ecological damage went unaddressed.
“There’s only so much litigation can do to solve these problems,” Simons said. “I remain firmly convinced that companies operate in regions like Peru without applying the environmental protection standards that they would apply if they were doing it in their own backyard.”
In 2013, Peru declared a state of emergency due to the severity of the pollution in Lot 1AB. The government employed some short-term initiatives like distributing water filtration devices to communities, but Indigenous representatives said those measures were insufficient. The water filters, for instance, did not remove heavy metals from drinking water.
Then Pluspetrol, hoping to leave Lot 1AB without taking additional remediation measures, took matters into its own hands.
Following the Law, or Shaping It?
Multinational companies like Pluspetrol have for decades used an under-the-radar legal tool to prevent countries from enacting tougher environmental regulations.
International investment agreements became a popular legal tool following the cold war when western companies were eager to invest in former communist states but were wary of those countries’ weak rule of law and history of nationalizing industries.
To incentivize investment, countries negotiated treaties that give companies protections and legal rights while putting obligations on governments to protect investors from “unequitable” treatment.
Today, many environmental lawyers say those treaties are outdated and have been weaponized by multinational corporations to keep governments from phasing out environmentally destructive practices.
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Peru is a party to about 50 such agreements and there are about 2,600 in force worldwide, according to the Investment Policy Hub.
When disputes arise between companies and countries, the agreements usually compel parties to engage in a binding arbitration system that exists outside the normal judicial process. The arbitrations take place behind closed doors with limited avenues for affected third parties, like Peru’s Indigenous communities, to participate.
So-called investor state dispute settlement is a lucrative industry for handpicked arbitrators, who sometimes are also employed by companies, giving them an incentive to issue favorable rulings for investors, according to Amandine Van Den Berghe, a lawyer who specializes in international trade disputes.
“What’s problematic is that the system is only for foreign investors to sue states and not the other way around,” she said. “It’s much harder for local communities affected by companies’ behavior to go against big companies in courts.”
In Peru, Pluspetrol used an investor state dispute mechanism to its advantage.
In 2015, when Pluspetrol ended its operations in Lot 1AB and Peruvian regulators began pursuing the company for remediation, the company sought relief at the Inter-American Commercial Arbitration Commission.
Pluspetrol asked an arbitration panel to decide whether, as Occidental’s successor in interest to Lot 1AB, it had responsibility for environmental contamination Pluspetrol attributed to Occidental. The arbitrators issued a vague ruling, finding that the contract between the two companies did not expressly address the issue, but that the contract did require Pluspetrol to respect Peruvian legislation, which includes requirements for environmental remediation.
Peru and Pluspetrol have taken opposite interpretations of the ruling with Pluspetrol arguing that the ruling vindicates the company, while the government maintains that the ruling means Pluspetrol is responsible for all remediation of the lot.
Leveraging its interpretation of the ruling, Pluspetrol has continued to fight Peru’s attempts to force the company to clean up the sites. While Pluspetrol ceased operating in Lot 1AB in 2015, the dispute over the issue continues in Peruvian courts.
In March 2020, a coalition of Peruvian Indigenous and human rights groups filed a complaint with the Dutch contact at the Organization for Economic Cooperation and Development (Pluspetrol moved its headquarters to the Netherlands in 2000) over the contamination in Lot 1AB and alleged evasion of taxation. The complainants are asking that Pluspetrol remediate the contamination.
In April, the contact for the OECD accepted the complaint; Pluspetrol has said it will not participate in the proceedings. The Dutch contact is investigating the claims and will issue a decision on whether the company violated OECD guidelines for multinational corporations. The decision has no power to force Pluspetrol to clean up the lot, but could have reputational and financial repercussions for the company, according to lawyers.
In late 2020, the company announced that it was liquidating Pluspetrol Norte, the Pluspetrol subsidiary that held the rights to drill in Lot 1AB—a move that could affect Peru’s ability to enforce any rights it has against the company. The company continues to operate under the auspices of another subsidiary elsewhere in Peru.
Toward an Ecocentric World
The repeated and enduring contamination of Lot 1AB is tantamount to ecocide, advocates say.
In June, a panel of legal experts proposed a definition for the would-be crime: “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
Jojo Mehta, the co-founder of Stop Ecocide International and chair of the foundation that convened the drafting panel, said that, had an international crime of ecocide been in place when Occidental and Pluspetrol operated in Peru, their corporate officers may have been spurred to use better practices and to quickly remediate any damage.
That’s because the International Criminal Court, which would have jurisdiction over an ecocide crime if adopted by the court’s member countries, only prosecutes individual defendants most responsible for crimes. And while warlords may not view the prospect of prosecution as a deterrent, corporate officers must consider the reputational and financial implications of being accused of criminal activity, she said.
International Criminal Court watchers say what would be significant about an ecocide crime is that, as the legal panel defined it, the crime is wholly ecocentric, meaning the crime aims to protect Earth in and of itself, even absent any human harm. The idea is a radical shift from the way international criminal law, and even conventional environmental law, has functioned historically.
Mehta, along with proponents of rights of nature laws, believes a new legal framework that evens out the imbalance between short term economic interests and the environment is needed to steer humanity towards a sustainable future. Some advocates say there is also a moral imperative to do so.
“In my case, as a Christian, the planet is God’s creation,” said Cadenas, the Peruvian Catholic Bishop. “All that destroys the planet is an attempt against God’s creation, against God himself. We can use the ‘goods of creation’ to make our lives worthy, but we are committed to leaving the planet to the next generation, at least as we have received it.”
Protecting the Marañón River for their children and grandchildren was one of the reasons the members of the Huaynakana Kamatahuara kana filed the Peruvian lawsuit demanding recognition of the river’s legal rights, according to the group’s board member, Isabel Murayari.
Lawyers familiar with the lawsuit say the case is in its early stages and that it could be months before the court issues a substantive ruling. They also say a ruling in favor of the Kukama women would be the first time a Peruvian court recognized the rights of nature and would empower the Kukama community to manage their lands according to their ancestral worldviews.
The case comes on the heels of other successful Indigenous-led initiatives for the recognition of the rights of rivers, including the Whanganui River in New Zealand, the Atrato River in Colombia and the Magpie River in Canada.
As the rights of nature movement finds its legal footing, its supporters say equally as important as changing the law is changing people’s perception of what nature is, and what humanity’s place is in the natural world.
“What this movement is creating is a whole new system, a new philosophy and way of thinking,” said Gustavo Hernández, a Peruvian-based expert at the U.N.’s Harmony with Nature Program. “It’s making a pathway for the future.”