Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Indigenous and Tribal Populations Convention, 1957 (No. 107) - Panama (Ratification: 1971)

The Committee notes that the Government’s report has not been received. The Committee hopes that a report will be sent for examination at its next meeting and that this report will contain detailed information on the points raised in its comments in 2011, which read as follows:

Repetition

Chan 75 hydroelectric project. The Committee notes that, according to the observations on the situation of the Charco la Pava community presented to the Human Rights Council by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (A/HRC/12/34/Add.5, 7 September 2009), in January 2008, construction work began on the Chan 75 hydroelectric dam in the district of Changuinola (Bocas del Toro). It noted that this project would entail the flooding of the lands of various communities of the Ngöbe indigenous people, including Charco la Pava, Valle del Rey, Guayabal and Changuinola Arriba, with a population of approximately 1,000 persons, and that another 4,000 indigenous persons would also be affected. It also notes that, according to the Special Rapporteur (ibid.), the start of the construction work was accompanied by protests by members of the communities and these protests were suppressed by the national police. It further notes the allegations in the report concerning the permanent presence of officers of the national police who have been assigned the task of ensuring the further progress of the work.

The Committee understands that the communities affected were not consulted in relation to the decision to implement the hydroelectric project. The Committee also notes that the current situation arose from the failure to recognize the rights of the abovementioned indigenous communities relating to their traditional lands and the consequent consideration of those lands as state land. The Committee further notes the precautionary measures adopted by the Inter-American Commission on Human Rights in June 2009, requesting the State of Panama to suspend the construction work in order to avoid irreparable damage to the ownership rights of the Ngöbe indigenous people.

The Committee notes the information supplied by the Government to the effect that on 10 August 2009 a high-level round table was established to conduct a dialogue on the issues affecting the indigenous communities as a consequence of the construction of the Chan 75 hydroelectric dam. The Committee notes that the round table comprised the Deputy Minister for Governance and Justice, the Minister for External Relations, the Minister for Social Development, the Administrator-General of the National Environment Authority, the Governor of Bocas del Toro province, the mayor of the district of Changuinola, the National Assembly deputy for the area, two representatives of each of the communities affected by the project with their legal adviser, and two representatives of the company responsible for the project (AES) with their legal adviser.

The Committee recalls that, under the terms of Article 11 of the Convention, governments have the obligation to recognize the right of ownership of indigenous populations over the lands traditionally occupied by them. The Committee also wishes to emphasize that consideration must be given, in defining the rights of these populations, to their customary laws in accordance with Article 7. Furthermore, the Committee draws the Government’s attention to Article 5, which states that, in applying the provisions of the Convention, governments must seek the collaboration of the indigenous populations and their representatives with regard to the formulation and implementation of the relevant measures.

The Committee notes that in his statement of 25 November 2009, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people expressed his “extreme concern about the forced eviction and the destruction of their housing suffered on 20 November 2009 by the Naso communities of San San and San San Druy, in Changuinola, Bocas del Toro province”. According to the statement, “about 150 riot policemen evacuated with tear-gas bombs more than 200 indigenous Naso living in the communities of San San and San San Druy. After they were taken out of the area, employees of the Ganadera Bocas company entered the area with machinery and proceeded to demolish indigenous people houses” (UN Press Release, 25 November 2009).

The Committee expresses its serious concern in the face of these events and recalls that, according to the principle set out in Article 12 of the Convention, the groups affected cannot be removed from their territories without their free consent, subject to certain specific exceptions.

The Committee urges the Government to take all necessary steps, in collaboration with the representatives of the indigenous communities affected by the Chan 75 project, to recognize the rights of these communities over the lands traditionally occupied by them. It urges the Government to seek agreed solutions between all the parties concerned to remedy the current situation and provide information on all progress achieved in this respect, including information on any agreements reached by the abovementioned round table for dialogue. The Committee asks the Government to ensure that measures are adopted to protect the institutions, persons, property and labour of the communities affected until a solution of the issue is reached.

Land rights. The Committee notes draft Act No. 411 of 2008, which establishes a special procedure for awarding collective ownership of lands of indigenous peoples and prescribes other provisions. It notes that this draft Act is before the Committee for Indigenous Affairs of the National Assembly of Deputies. The Committee understands that the draft Act will encompass draft Act No. 17 concerning the rights of the Emberá and Wounaan peoples and will enable examination of the issue of the recognition of the Bri-bri territory and the creation of the comarca (indigenous region) of Pueblo Naso. The Committee requests the Government to send a copy of draft Act No. 411 of 2008 and indicate to what extent the indigenous peoples were consulted with regard to the preparation of this legislative text. The Committee also requests the Government to supply information on any progress made with regard to the adoption of the draft Act.

The Indigenous and Tribal Peoples Convention, 1989 (No. 169). The Committee notes the Government’s indication to the effect that it has examined the possibility of ratifying Convention No. 169, although no major progress has been achieved owing to the complexity of the matters covered by the Convention and the discrepancies which exist in relation to national law and practice. The Committee recalls that, in its general observation of 1992 on the Convention, it emphasized the fact that Convention No. 169 is more oriented than Convention No. 107 towards respect for and protection of the cultures, ways of life and traditional institutions of indigenous and tribal peoples. It therefore encouraged governments which had ratified Convention No. 107 to give serious consideration to ratifying Convention No. 169. The Committee hopes that the Government will continue to consider ratifying Convention No. 169 and encourages it to seek technical assistance from the Office in order to address any difficulties which might arise in connection with ratification. It requests the Government to provide information on any progress made on this matter.

Socio-economic situation of indigenous peoples. The Committee notes that, according to the fourth National Report on the Situation of Women in Panama (2002–07), in indigenous areas, 98.5 per cent of the population lives in poverty and 89.7 per cent lives in extreme poverty. The Committee notes with interest the numerous programmes implemented by the Government in the areas of health, education, vocational training and support for indigenous enterprise development with a view to eliminating extreme poverty and improving the social, economic and cultural situation of the indigenous peoples. The Committee requests the Government to supply information on the implementation of these programmes and their impact, also indicating the manner in which the participation of indigenous peoples and their representatives in the formulation and implementation of programmes is ensured.

Article 2 of the Convention. Development of coordinated programmes. The Committee notes the extensive information supplied by the Government regarding the numerous programmes undertaken in the areas of health, education, vocational training and support for indigenous business development with a view to improving the social, economic and cultural situation of indigenous peoples. The Committee notes in particular that, according to the progress report on the “Network of Opportunities” programme, the population of the indigenous areas has received 48.3 per cent of investment since the start of the programme. The Committee notes that this programme includes plans to give monetary support to women heads of household in connection with the use of health and education services, strengthening the provision of such services and building infrastructure, such as aqueducts, sanitary installations, access paths and roads in areas affected by extreme poverty. It also notes that Programme PN-T1032 supporting indigenous business development (PRODEI) benefited eight indigenous enterprises which were identified and given priority by the indigenous communities and their traditional authorities by means of various consultation processes and a validation workshop. The Committee requests the Government to continue to supply information on the programmes aimed at improving the social and economic situation of the indigenous peoples and the impact thereof, including information on the steps taken to consult the indigenous peoples concerned. The Committee also requests the Government to supply information on the evaluation of the activities of the National Council for Indigenous Development (CNDI).

With regard to its previous request concerning the “Project for the sustainable development of the Ngöbe-Buglé comarca (indigenous region) and adjacent poor rural areas”, the Committee notes that the project has a steering committee (CDP) composed of four representatives of the comarca and four state representatives, which meets 12 times per year to decide on future actions. It also notes that these actions are implemented by the project management unit (UGP), which conducts meetings with the indigenous leadership (caciques and congress executive committees) for information, coordination and planning. It notes in particular that the project has a “human and social resources development component” (CODERHS) with which it has funded scholarships for 1,327 students at primary, pre-intermediate, intermediate and university levels. It also notes that the project comprises the National programme for school nutrition and the Programme for sexual and reproductive health, in the context of which doctors in the comarca are informed of indigenous customs and traditions. The Committee requests the Government to continue to supply information on the implementation of the “Project for the sustainable development of the Ngöbe-Buglé comarca and adjacent poor rural areas” and the impact thereof on the socio-economic and cultural situation of the peoples concerned. The Committee also requests the Government to supply information on the measures taken in the context of the “Strategic plan for the development of the Ngöbe-Buglé comarca” and on the manner in which the indigenous peoples concerned participated in the formulation of this plan.

The Committee notes the indication in the Government’s report that the Social Investment Fund (FIS) carries out activities to support indigenous communities in the comarcas of Emberá, Kuna-Yala and Ngöbe-Buglé. The Committee requests the Government to supply information on the activities carries out by the FIS in the abovementioned comarcas. It also requests the Government to indicate the extent to which the collaboration of the indigenous peoples concerned is sought in the design of such activities, and opportunities are offered to them for the full development of their initiatives, in accordance with Article 5 of the Convention.

With reference to its previous comments concerning the existence of a legal void in the enforcement of the legal provisions acknowledging the right of the Emberá-Wounaan comarca to have its own budget, the Committee notes the Government’s indication that the legislation does not make provision for a competent authority responsible for the administration of the annual budget. The Committee requests the Government to clarify the manner in which the comarca is able to administer its annual budget in practice.

In view of the lack of information concerning the National indigenous development plan, the Committee requests the Government to provide information regarding progress made on the establishment of the plan, including the steps taken to provide the indigenous communities with the necessary technical assistance.

Article 5. Consultation. The Committee notes the information supplied by the Government concerning the provisions of the General Environment Act of 1988, which provides for the setting-up of environmental advisory committees at the provincial, comarca and district levels. The Committee requests the Government to supply information on the activities of the committees and the extent to which the committees enable the various indigenous communities to participate in the planning of their development.

Noting that the Government’s report does not contain any information on the other matters raised by the Committee with regard to consultation, the Committee again requests the Government to supply information on the following:

• (i) the measures adopted or contemplated to prevent the differences between regional legislation giving rise to imbalances in the rights and development of the various communities;
• (ii) the manner in which it is ensured that preliminary environmental impact studies are carried out with respect to any exploration or exploitation in indigenous areas in comarcas other than those of Kuna de Madungandí and Emberá Darién;
• (iii) with regard to Act No. 15 of 7 February 2001, the measures taken to enable consultations to be held with the communities concerned in cases of exploitation even where the area in question is not entirely located within the same comarca; and
• (iv) any progress made on the Tabasará II case concerning the construction of two hydroelectric dams across the River Tabasará.

Article 6. Conditions of life and work. In its previous comments, the Committee noted with concern the deplorable conditions of life and work of Ngöbe and Buglé boys and girls who work in sugarcane and coffee plantations in the provinces of Coclé and Veraguas. The Committee notes the information supplied by the Government on the measures adopted jointly by the Ministry of Labour and Labour Development (MITRADEL) and the Ministry of Social Development in the context of the Technical Committee for the Elimination of Child Labour and Protection of Young Workers (CETIPPAT). The Committee requests the Government to continue to supply information on the activities of the CETIPPAT and to indicate their impact with regard to improving the conditions of life and work of the peoples concerned.

The Committee notes the cooperation established between the authorities of Panama and Costa Rica with a view to eliminating child labour affecting emigrant indigenous boys and girls. It also notes with interest the agreement of 14 May 2009 between Panama and Costa Rica on the management of migration flows for the purposes of employment between Costa Rica and Panama for Ngöbe-Buglé indigenous workers and their families. It further notes that section 57 of Legislative Decree No. 3 of 2008, establishing the national migration service, its career structures and other provisions, provides that the State has the obligation to preserve and facilitate the “innocent passage” of Panamanian indigenous peoples to and from Panamanian jurisdiction and also to protect them from threats arising from illegal activities, such as the trafficking of persons, trafficking of drugs, terrorism and trafficking of weapons. The Committee requests the Government to supply information on the application of the abovementioned instruments.

The Committee refers to its previous comments concerning the difficulties faced by indigenous peoples with regard to obtaining credit. The Committee again requests the Government to supply information on the measures taken or contemplated to facilitate the granting of credit to members of these peoples.

Articles 7 and 8. Customary laws and methods of control. The Committee requests the Government to send copies of any court decisions which take into consideration the application of customary laws or methods of social control practised by indigenous communities.

Articles 11 to 14. Land rights. With reference to its previous comments concerning the dispute between indigenous communities and settlers who were systematically invading their lands, the Committee notes that the High-Level Commission was set up to tackle the problem by means of Executive Decree No. 287 of 11 July 2008. It also notes that Executive Decree No. 247 of 4 June 2008 authorizes the appointment of the corregidor comarcal (government-appointed mediator) for the comarca of Kuna de Madungandí to resolve the disputes which have arisen in the comarca. It also notes that the National Directorate for Agrarian Reform of the Ministry of Agricultural Development (MIDA) is handling a number of cases of agrarian disputes which are in the process of being resolved. The Committee requests the Government to supply detailed information on the initiatives launched by the High-Level Commission to resolve the disputes between indigenous communities and settlers. It also requests the Government to supply information on the cases handled by the corregidor comarcal of the comarca of Kuna de Madungandí, on the cases handled by the MIDA and on any decisions reached.

The Committee notes from the Government’s report that, in the context of the National Land Administration Programme (PRONAT), forums for dialogue were set up in the Bri-bri, Naso, Ngöbe and Kuna territories to settle disputes between indigenous and adjoining lands. It also notes that action was taken with a view to delimiting the Naso and Bri-bri indigenous territory and a preliminary draft Act was drawn up with regard to the creation of the comarca of Naso Tjerdi. The Committee requests the Government to continue to supply information regarding PRONAT and its impact on strengthening the rights of indigenous communities over their traditional lands. Noting that the Government’s report does not contain any information on the other matters raised by the Committee with regard to land rights, the Committee requests the Government to supply detailed information in its next report in relation to points 22, 23, 24, 26 and 27 of its previous direct request.

Articles 16 and 17. Vocational training. The Committee notes the information contained in the report of the National Institute of Vocational Training for Human Development (INADEH) concerning training programmes for indigenous communities. The Committee notes with interest that INADEH has in some cases borne the costs of food and transport for indigenous participants in order to ensure their participation in the training programmes. It also notes the intention to formalize the presence of INADEH in the comarca of Ngöbe-Buglé. The Committee requests the Government to continue to supply information on the application of Articles 16 and 17 of the Convention.

Article 18. Handicrafts and rural industries. The Committee notes the detailed information supplied by the Government regarding the special intellectual property regime relating to the collective rights of indigenous peoples. The Committee requests the Government to continue to supply information on the awareness-raising and dissemination activities undertaken by the General Office of the Registry of Industrial Property (DIGERPI). It also requests the Government to supply information on the implementation of the relevant parts of the Project for the development and promotion of intellectual property.

Articles 19 and 20. Social security and health. The Committee notes the Government’s indication that notifications were sent to indigenous institutions and congresses regarding the formation and establishment of the National Commission for Indigenous Traditional Medicine and the Technical Secretariat for Indigenous Traditional Medicine, but without any result. The Committee requests the Government to take the necessary measures, including dissemination and awareness raising, to address the obstacles to the formation and establishment of the abovementioned bodies.

With reference to its previous comments concerning the difficulties faced by indigenous communities in gaining access to health services, the Committee notes the various programmes for strengthening the provision of health services in indigenous areas. It notes in particular that the Health plan for the indigenous peoples of Panama envisages the restructuring of the network for the provision of health services so as to convert health posts and sub-centres, which offer a primary level of health care, into health centres with doctors, nurses and adequate supplies and equipment. The Committee requests the Government to supply information on the implementation of the abovementioned plan and to continue to supply information on the measures taken as part of the other programmes mentioned in its report and the impact thereof.

Articles 21 to 24. Education. The Committee notes with interest Executive Decree No. 274 of 31 August 2007 establishing the National Directorate for Bilingual Intercultural Education, which, according to section 2, has the objective of ensuring the effective participation of indigenous peoples in the process for institutionalizing bilingual intercultural education and has the mandate to create mechanisms through which this participation can take place. It also notes the National plan for bilingual intercultural education and the Plan for the indigenous peoples of Panama, funded by the World Bank and drawn up, according to the Government’s report, on the basis of recommendations and agreements resulting from consultations with representatives of the peoples concerned. The Committee requests the Government to provide information on the establishment of mechanisms for the participation of indigenous peoples in accordance with sections 2 and 3 of Executive Decree No. 274. It also requests the Government to supply information on the implementation of the National plan for bilingual intercultural education and the Plan for the indigenous peoples of Panama, including information on the extent to which indigenous peoples are consulted with regard to devising appropriate curricula and teaching materials. The Committee also requests the Government to continue to supply information on the programmes implemented to ensure that members of indigenous communities have the possibility of acquiring education at all levels on an equal footing with the rest of the national community.