Report No. 58 (2009) IACHR. Petition No. 12.354 (Panamá)

Petition Number12.354
Report Number58
Respondent StatePanamá
CourtInter-American Comission of Human Rights
Case TypeAdmissibility
Alleged VictimPueblo Indígena Kuna De Madungandi y Emberá De Bayano y sus miembros, Panamá

REPORT 58/09

PETITION 12.354

ADMISSIBILITY

KUNA OF MADUNGANDÍ AND EMBERÁ OF BAYANO INDIGENOUS PEOPLES AND THEIR MEMBERS

PANAMA

April 21, 2009

I. SUMMARY

1. On May 11, 2000, the Inter-American Commission on Human Rights (hereinafter "the Inter-American Commission", "the Commission" or "the IACHR") received a complaint presented by the International Human Rights Law Clinic of the Washington College of Law, Centro de Asistencia Legal Popular (CEALP), Asociación Napguana, and Emily Yozell (hereinafter "the petitioners"), on behalf of the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano and their members, (hereinafter “the alleged victims”), against the Republic of Panama, (hereinafter the “Panamanian State”, “Panama” or the “State”).

2. The petition alleges that the construction of the Bayano Hydrolectric Dam, which resulted in the flooding of the ancestral territory they used to inhabit, violated the collective rights of the Kuna of Madungandí and Emberá of Bayano peoples because: the alleged victims were not paid the full amount of compensation agreed to by the State; the lands currently inhabited by the Kuna of Madungandí have not been demarcated or protected; the territory occupied by the Emberá of Bayano has not been recognized; the intrusion by colonists into the lands presently inhabited by the alleged victims has generated a situation of constant conflict; and because indigenous culture has not been respected. The petitioners allege that the State of Panama is responsible for the violation of the rights enshrined in Articles 4 (right to life), 7 (right to personal liberty), 10 (right to compensation), 12 (freedom of conscience and religion), 17 (rights of the family), 19 (rights of the child) and, 21 (right to private property) of the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”). They also hold that the State disregarded Articles I, III, V, VI, VII, XI, and XIII of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”).

3. The State, for its part, asserts that the petition should be declared inadmissible because no violation exists of the alleged victims’ human rights on account of the fact that it has met their demands through various agreements and resolutions and that they have been compensated for being moved off their lands. The State also argues that the rule of prior exhaustion of domestic remedies set forth in Article 46(1)(a) of the American Convention has not been met.

4. Having examined the positions of the parties and the requirements set forth in Articles 46 and 47 of the Convention, and without prejudging the merits of the matter, the Commission concludes that the petition is admissible with regard to alleged violations of Article 21 of the American Convention, in conjunction with Article 1(1) of same. Furthermore, under the principle of iura novit curia, the Commission will, in the merits stage, analyze if a possible violation exists of Articles 2, 8(1), 24, and 25 of the American Convention. The Commission concludes that the petition is inadmissible with respect to Articles 4, 7, 10, 12, 17, and 19 of the Convention and inadmissible with respect to Articles I, III, V, VI, VII, XI and XIII of the American Declaration. The Commission has decided to notify the parties of this decision, publish it, and include it in its Annual Report to the General Assembly of the Organization of American States.

II. PROCESSING BY THE COMMISSION

A. Processing of the Petition

5. The Commission received the petition on May 11, 2000, and assigned it case number 12.354. On January 11, 2001, it transmitted a copy of the pertinent portions to the State and requested it to reply within 90 days, in keeping with Article 34 of its Regulations (in force in 2001). The Commission received the reply of the State on July 2, 2001.

6. The IACHR also received information from the petitioners on the following dates: May 26, 2001; July 26, 2001; September 24, 2001; December 12, 2001; January 18, 2002; May 15, 2002; September 25, 2002; February 21, 2003; August 4, 2003; December 23, 2003; January 19, 2007; March 14, 2007; April 17, 2007; May 10, 2007; September 15, 2007, and November 13, 2007. Said communications were duly relayed to the State.

7. Furthermore, the IACHR received comments from the State on the following dates: November 16, 2001; December 18, 2001; February 26, 2002; December 2, 2002; June 2, 2003; May 28, 2004; May 23, 2007; June 18, 2007, and September 6, 2007. Said communications were duly forwarded to the petitioners.

8. On November 12, 2001, a hearing was held at which the parties expressed their interest to reach a friendly settlement of the matter. On March 8, 2002, a working meeting was held in the framework of the 114th Period of Sessions of the IACHR to follow up on the friendly settlement process initiated by the parties. On September 25, 2002, the petitioners informed the IACHR that they had decided to terminate the friendly settlement process and requested that it continue its processing of the case.

9. In a communication of March 9, 2007, received on March 14, 2007, the petitioners requested the Commission to adopt precautionary measures in order to protect the lives and physical integrity of the members of the Kuna of Madungandí and Emberá of Bayano indigenous peoples, due to alleged illegal trespassing by colonists on their territory, which had intensified since January 2007. In this context, they requested the Commission to require the State to adopt effective measures to protect their right to the land.

III POSITIONS OF THE PARTIES

A. The petitioners

10. According to information furnished by the parties, the Kuna of Madungandí and Emberá of Bayano indigenous peoples lived on the Alto Bayano Indigenous Reserve until 1976. At present, the members of the Kuna indigenous people from the Bayano region live in the Kuna of Madungandí Reserve. The Emberá, for their part, live in the villages of Ipeti and Piriati.

11. The petitioners state that in 1963, the United States Agency for International Development (USAID) and the Government of Panama proposed a project for the construction of a hydroelectric complex in the Bayano Region that consisted of a concrete dam at the confluence of the Rivers Canita and Bayano, which would create a reservoir covering approximately 350 km2.

12. The petitioners indicate that the Bayano dam was built between 1972 and 1976 and that the indigenous peoples who inhabited the area were relocated in 1973 and 1977. They say that as a result of the dam, 80% of Kuna and Emberá ancestral lands were flooded; they were forced to move from their ancestral lands to lands smaller in area and of inferior quality; the ecosystem on which they depended for their physical and spiritual survival was destroyed; there was an increase in disease caused by decomposing vegetation, and the cultures of the Emberá and Kuna de Madungandí indigenous peoples deteriorated.

13. As regards the Emberá, the petitioners point out that the government relocated the members of this people to the vicinity of the Mebrillo River. They state that when it was determined that this place was unsuitable, were relocated to their current settlements of Ipeti and Piriati. They say that the Emberá were promised financial compensation for the loss of their crops, which, according to the petitioners, was to be delivered over a period of three years.

14. With respect to the Kuna of Madungandí people, the petitioners indicate that they were relocated to less fertile, higher-altitude lands. They also state that the government of President Omar Torrijos agreed to provide them with financial compensation as redress for the loss of their crops. They state that only those persons who possessed a property title were eligible for the compensation offered by the State, which was impossible for members of the Kuna people, who have a collective concept of land ownership.

15. According to the petitioners, in 1977, the government, alleging a shortage of funds, suspended all compensation payments and, as a result, at their current settlements, the members of the Kuna and Emberá peoples have continued to suffer the effects of the loss of their lands and crops following the dam’s construction.

16. The petitioners also argue that the alleged victims have been prevented from effectively exercising their right to property due to the presence of peasant farmers who are illegally settling on their land, a situation made possible by the construction of the Pan-American Highway which provides access to the territory of the indigenous peoples. They state that in the mid-1970’s, these colonists initiated a continuing invasion of Kuna and Emberá territory and, taking advantage of the government’s passiveness in demarcating indigenous territories, took possession of indigenous lands along with their natural resources and turned them into grazing land. At present, colonists continue to unlawfully appropriate lands inhabited by indigenous peoples.

17. The petitioners point out that over the course of 30 years, innumerable measures have been adopted in an attempt to obtain compensation for the forced relocation of the alleged victims, secure recognition and protection for the lands they currently inhabit, and confront the invasion of the colonists. Among those measures, are a series of agreements that the petitioners have signed with the State since 1969, administrative complaints filed at least since 1992, and criminal complaints brought since January 2007 to deal with the invasion of squatters, none of which has been effective.

18. With respect to legal actions against the presence of the colonists, the petitioners maintained that in spite of the fact that...

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