REPORT No. 125/12 CASE 12.354 MERITS KUNA INDIGENOUS PEOPLE OF MADUNGANDI AND EMBERA INDIGENOUS PEOPLE OF BAYANO AND THEIR MEMBERS PANAMA I. SUMMARY................................................................................................................ 1 II. PROCESSING BEFORE THE IACHR ............................................................................... 2 A. Precautionary measures ................................................................................... 3 III. THE PARTIES’ POSITIONS .......................................................................................... 4 A. The petitioners ................................................................................................ 4 B. The State ....................................................................................................... 7 IV. FACTS PROVEN......................................................................................................... 8 A. Indigenous peoples in Panama and the applicable legal framework......................... 9 B. The indigenous peoples Kuna of the Madungandí and the Emberá of Bayano, their ancestral territory and mode of subsistence ...................................................... 12 1. The Kuna indigenous people of Madungandí........................................... 12 2. The Emberá Indigenous People of Bayano.............................................. 14 3. The non-indigenous population or “settlers” (“colonos”) in Bayano ........... 16 C. Situation of the collective property rights of the Kuna Indigenous People of Madungandí and the Emberá of Bayano............................................................ 16 1. Creation of the Indigenous Reserve of Upper Bayano, and the Comarca of Bayano and Darién (1930-1952) .......................................................... 16 2. Construction of the Bayano Hydroelectric Complex and the Pan American Highway; Agreements of Farallón, Cimarrón, and Majecito (1963-1979) ... 19 3. Inter-institutional Commission, Decree 5-A, and Agreements of Mutual Accord (1980-1990)........................................................................... 26 4. Aggravation of the invasion of non-indigenous persons, public protests, and creation of the Kuna Comarca of Madungandí (1990-1996)..................... 29 5. Coordinating the Mesas de Concertación of the Darién Sustainable Development Program and the new Inter-Governmental Commission (1996- 2001) ............................................................................................... 32 6. Pursuit of a friendly settlement agreement before the IACHR: The Indigenous-Government Commission (2001-2006) ................................. 35 7. Creation of the High-Level Presidential Commission and establishment of a procedure for the adjudication of collective property rights in indigenous lands (2007-2012) ............................................................................. 37 D. Administrative and judicial actions taken by the Kuna and Emberá indigenous peoples to protect their lands and to secure payment of the compensation due for the loss of their ancestral territories................................................................................. 40 1. Communications and initiatives with authorities at the national, provincial, and local levels................................................................................... 41 2. Administrative procedures followed by the alleged victims....................... 42 3. Criminal proceedings concerning the invasion by peasants and crimes against the environment ................................................................................. 49 E. Impact of the Bayano Hydroelectric Complex and the Pan American Highway on the the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano, and their members............................................................................................... 53 2 V. LEGAL ANALYSIS .................................................................................................... 56 A. Preliminary matters........................................................................................ 56 1. Delimitation of the legal dispute with respect to the territories of the alleged victims .............................................................................................. 56 2. Considerations on the competence of the IACHR ratione temporis............ 57 B. Indigenous property rights – Articles 8, 21, and 25 of the Convention, in relation to its Articles 1(1) and 2 .................................................................................... 57 1. The territorial rights of indigenous peoples in the inter-American human rights system .............................................................................................. 57 2. The indigenous territorial claim in the instant case .................................. 59 C. Right to equality before the law and non-discrimination – Articles 24 and 1(1) of the American Convention..................................................................................... 81 VI. CONCLUSIONS ........................................................................................................ 88 VII. RECOMMENDATIONS............................................................................................... 88 REPORT No. 125/12 CASE 12.354 MERITS KUNA INDIGENOUS PEOPLE OF MADUNGANDI AND EMBERA INDIGENOUS PEOPLE OF BAYANO AND THEIR MEMBERS PANAMA November 13, 2012 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 petition submitted by the International Human Rights Law Clinic of the Washington College of Law, the Centro de Asistencia Legal Popular (CEALP), the Asociación Napguana, and Emily Yozell (hereinafter "the petitioners")1, on behalf of the indigenous peoples Kuna of the Madungandí2 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 petitioners alleged that in the wake of the construction of the Bayano Hydroelectric Dam (Represa Hidroeléctrica del Bayano) from 1972 to 1976, the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano were forced to abandon their ancestral territory, which was flooded by the reservoir of the dam. They argued that as they lacked any other alternative, they were forced to relocate to the new lands offered by the State, which it said were of better quality and greater quantity, and to accept the economic compensation that was to be paid in exchange for the destruction and flooding of their ancestral territory. They indicated that nonetheless the commitments were not carried out, for the compensation was not paid in its entirety, and the lands granted did not have the characteristics offered. As regards the Kuna indigenous people of Madungandí, they argued that while the State formally recognized their right to collective property over the lands they inhabit in 1996, it has not provided effective protection vis-à- vis the constant invasion by non-indigenous persons. With respect to the Emberá indigenous people of Bayano, they argued that to date the State has failed to title, delimit, and demarcate the territory they occupy, but to the contrary has granted property title to third persons and has allowed its illegal appropriation by peasants. 1 In a note received on October 30, 2008, the International Human Rights Law Clinic of the Washington College of Law reported that cacique Félix Mato Mato, legal representative of the Comarca of Madungandí, had designated the law firm of Rubio, Álvarez, Solís & Abrego as their new representatives. Subsequently, in a note received on May 1, 2009, the International Human Rights Law Clinic of the Washington College of Law reported that the services of that firm had been rescinded. In that same communication, the granting of power-of-attorney by the General Cacique of the Congress of Madungandí to “International Human Rights Law Clinic of the Washington College of Law, Centro de Asistencia Legal Popular, a law firm in Panama, and the Organización Kuna de Madungandí (ORKUM).” In a brief of October 17, 2011, received by the IACHR on October 27, 2011, the petitioners submitted a note, issued by the General Kuna Congress of Madungandí and the Regional Emberá Congress of Alto Bayano, by which they reiterate the power-of-attorney conferred upon the International Human Rights Law Clinic of the Washington College of Law and granted power-of-attorney to attorney Horacio Rivera, for his representation in the case. By note received on March 2, 2012, the Emberá General Congress of Bayano reported that as regards their communities, the petitioner is CEALP, particularly attorney Héctor Huertas. In a brief received by the IACHR on July 13, 2012, a note was presented by which the General Congress of the Kuna Comarca of Madungandí authorizes Horacio Rivera as its representative for the instant case. 2 The IACHR takes note of the brief submitted on October 19th, 2012, by the CEALP, representative of the Emberá communities of Bayano in this case, in which it informed that “according to a decision of the Gunas indigenous authorities of Panama, the alphabet of the Guna language was approved, where the letter “K” was removed, therefore official documents should refer, from 2010 onwards, to name the Kuna with the correct