Report No. 75 (2009) IACHR. Petition No. 286-08 (Panamá)

Petition Number286-08
Year2009
Report Number75
Respondent StatePanamá
CourtInter-American Comission of Human Rights
Case TypeAdmissibility
Alleged VictimComunidades Indígenas Ngobe y sus miembros en el valle del Río Changuinola, Panamá

REPORT No. 75/09

PETITION 286-08

ADMISSIBILITY

NGÖBE INDIGENOUS COMMUNITIES AND THEIR MEMBERS IN THE CHANGUINOLA RIVER VALLEY

PANAMA

August 5, 2009

I. SUMMARY

1. On March 7, 2008, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” “the Commission,” or “the IACHR”) received a petition lodged by the organizations Cultural Survival and Alianza para la Conservación y el Desarrollo (Alliance for Conservation and Development) (hereinafter “the petitioners”). On May 13, 2008, the IACHR received a separate petition lodged by Ernesto López and Karine Rinaldi (hereinafter “the petitioners”). Both petitions were lodged on behalf of the members of several communities of the Ngöbe Indigenous People in the Changuinola River Valley, in the province of Bocas del Toro (hereinafter “the alleged victims,” “the Ngöbe,” or “the communities”), against the Republic of Panama, (hereinafter “the Panamanian state,” “Panama,” or “the State”). The petitions allege that the State, without prior consultation, awarded a concession for the construction of a hydroelectric dam within Ngöbe ancestral lands which has caused serious damage to the land, the environment and to the Ngöbe way of life; as well as the illegal resettlement of Ngöbe families, and the presence of police forces in the area to control any opposition to the hydroelectric project.

2. The petitioners claim that the Panamanian state is responsible for the violation of rights enshrined in Articles 5 (right to human treatment), 7 (right to personal liberty), 8 (right to a fair trail), 13 (freedom of thought and expression), 19 (rights of the child), 21 (right to property), 22 (freedom of movement and residence), 23 (right to participate in the government) and 25 (judicial protection) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”). The petitioners claim that they met the requirement of exhaustion of domestic remedies by having lodged an amparo petition that, to date, the Supreme Court of Justice has not admitted, which constitutes an exception to the admissibility requirement based on unjustified delay.

3. The State, for its part, contends that the petition must be declared inadmissible because there has been no violation of the human rights of the alleged victims, due to the fact that the Ngöbe communities are located in a protected area and not on ancestral lands, and because some of the affected residents of the area who had been resettled had also received compensation. The State also contends that the requirement of exhaustion of domestic remedies established in Article 46(1) of the American Convention has not been met.

4. After analyzing the positions of the parties and the requirements established in Articles 46 and 47 of the Convention, and without prejudging the merits of the case, the Commission concludes that the petition is admissible with regard to alleged violations of Articles 5, 7, 8, 13, 19, 21, 22, 23 and 25 of the American Convention and in accordance with Article 1(1) of the same instrument. Additionally, based on the principle of jura novit curia, during the stage of analysis on the merits the Commission will analyze the possible violation of Articles 2, 16 and 24 of the American Convention. The Commission thus decides to notify the parties of this decision, to publish it, and to include it in its Annual Report to the General Assembly of the Organization of American States.

II PROCESSING BEFORE THE COMMISSION

A. Processing of the Petition

5. The Commission received the first petition on March 7, 2008, and assigned it number 286-08. The second petition was received on May 13, 2008, and it was assigned number 123-08. Both petitions were grouped under number 286-08 since they dealt with the same facts and the same allegations of human rights violations. Both petitions also requested the adoption of precautionary measures to safeguard the integrity of the territory occupied by the communities, to guarantee the life and personal integrity of the members of the communities, and to remove the police forces present in the area.

6. Within the framework of a request for information with regard to the precautionary measures requested, on May 23, 2008, the IACHR forwarded to the State a copy of the relevant parts of the first petition and requested that, within a period of 15 days, the State provide information with regard to the situation of alleged urgency and irreparable damage to which the petitioners made reference and with regard to the petition in general. The response of the State, addressing the precautionary measures requested as well as matters regarding the admissibility of the petition, was received on June 13, 2008.

7. On August 20, 2008, within the framework of the processing of the petition, the IACHR forwarded copies of the relevant parts of the complaint to the State and requested that, in accordance with Article 30 of the Rules of Procedure of the IACHR, the State submit its observations within a period of two months. The State’s response was received by the Commission on November 20, 2008.

8. Furthermore, the IACHR received information from the petitioners regarding the admissibility of the petition and the precautionary measures requested on the following dates: April 7, 2008, May 13, 2008, July 22, 2008, July 30, 2008, September 24, 2008, October 29, 2008, January 15, 2009, July 1, 2009 and August 4, 2009. Those communications were duly transmitted to the State.

9. The IACHR also received observations from the State with regard to the admissibility of the petition and to the precautionary measures requested on the following dates: June 19, 2008, October 3, 2008, October 21, 2008, November 20, 2008, May 22, 2009 and June 26, 2009. Those communications were duly transmitted to the petitioners.

III POSITIONS OF THE PARTIES

A. Position of the petitioners

10. The petitioners allege that the State is responsible for violating the above mentioned human rights by having approved on May 2007, the sale of a 20-year concession for an area of 6,215 hectares (approximately 13,351 acres) to the company AES-Changuinola (hereinafter “AES-Changuinola” or “the company”), a subsidiary of Allied Energy Systems Corporation (AES). The concession, approved by the National Authority For the Environment [Autoridad Nacional del Ambiente (ANAM)], authorizes the construction of a series of hydroelectric dams in the Teribe-Changuinola River area, in the province of Bocas del Toro, and transfers to the company the authority to manage the area of the Palo Seco Protection Forest, where the first of these dams, called Chan -75 (hereinafter “the dam” or “Chan-75”), is under construction. The petitioners allege that neither the State nor the company obtained the consent of the communities for the approval of the concession, for the corresponding environmental impact studies or to begin construction of the hydroelectric projects.

11. The petitioners allege that dam Chan-75 would flood four communities - Charco la Pava, Valle del Rey, Guayabal y Changuinola Arriba - where approximately 1005 people reside, and who would have to be moved from the settlements where they currently reside. Furthermore, the petitioners point out, another 4,000 Ngöbe residents of the nearby communities of Nance de Riscó, Valle de Riscó, Guayacán and Bajo La Esperanza are under the risk of losing their transportation routes, their farmland, and the migratory fish species on which they depend for their subsistence.

12. The petitioners also point out, that there is no demarcation of or title deed to the lands where the Ngöbe communities currently reside, that the present settlements date back to the 1950s, but that, nevertheless, the settlements are located within what has always been their ancestral lands. Moreover, the petitioners assert, in 1983 the Panamanian State created the Palo Seco Protection Forest (BPPS) which included the lands where the Ngöbe presently reside, without their knowledge or consent. The petitioners add that although the lands of these communities were excluded from the Ngöbe-Buglé Comarca or Reserve, which the State created in 1997, they were still part of the so called “attached areas” which enjoyed the same rights as the communities inside the Reserve, and were lands that the State had committed itself to demarcate, at a later stage, on behalf of the Ngöbe communities.

13. The petitioners claim that the State delegated to AES-Changuinola the responsibility for consulting with the Ngöbe regarding the construction of the dam and about implementing a resettlement program. The petitioners point out that on two occasions, in August and in November 2007, representatives from the company together with representatives of ANAM, carried out consultations with the communities which consisted of explaining the economic benefits of building the dam and the type of lands where the Ngöbe would be resettled. The petitioners assert that the members of the Ngöbe communities expressed their opposition to being resettled.

14. The petitioners allege that throughout 2007, despite the opposition expressed by the members of the communities, the company applied pressure on some individual members of the communities to have them transfer their lands to the company in exchange for inadequate monetary compensation. The petitioners allege that through fraudulent and coercive means, some Ngöbe families were resettled and inadequately compensated in order to begin construction of dam Chan-75. At the same time, the petitioners state, other Ngöbe families have remained on their lands and refuse to be resettled. The petitioners claim that the supposed process of consultation and compensation carried out by the company did not respect Ngöbe social and...

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