HUMAN RIGHTS VIOLATIONS
BY THE GOVERNMENT OF PANAMA
DIRECTED AGAINST NGÖBE INDIGENOUS COMMUNITIES
AND INDIVIDUALS IN THE CHANGUINOLA RIVER VALLEY,
BOCAS DEL TORO, PANAMA
Petition to the Inter-American Commission on Human Rights
March 7, 2008
Petitioners:
Cultural Survival
215 Prospect Street
Cambridge, MA 02139
617-441-5400 x. 16
elutz@cs.org – www.cs.org
and
Alianza para la Conservacion y el Desarrollo
Apartado Postal 0815-01458
Zona 4, Panama
República de Panama
(507) 223-9170
acd@acdpanama.org or acdpanama@gmail.com
www.acdpanama.org
by
Ellen L. Lutz, Esq.
Executive Director Cultural Survival
Table of Contents
Introduction
Jurisdiction
Exhaustion of Domestic Remedies
Other Petitions
Background
Case Example: The Case of Ana Castillo and her Family Members
The Ngöbe living along the Changuinola River Are Indigenous
Ngöbe Land Tenure Practices
Violations of Ngöbe Rights to Humane Treatment and Personal
Liberty (Articles 5 and 7 of the ACHR)
Violations of Ngöbe Rights to Information; Participation; and to
Free, Prior, and Informed Consent (Articles 13 and 23 of the ACHR)
Violations of the Ngöbe Communities' Right to Property
(Article 21 of the ACHR)
Remedies Requested
Request for Provisional Measures
Provisional Measures Requested
List of Appended Documents, Photos, and Maps
2
HUMAN RIGHTS VIOLATIONS BY THE GOVERNMENT OF PANAMA
DIRECTED AGAINST NGÖBE INDIGENOUS COMMUNITIES AND INDIVIDUALS
IN THE CHANGUINOLA RIVER VALLEY IN BOCAS DEL TORO, PANAMA
Introduction:
This petition is presented by Cultural Survival, a nonprofit organization based in
Cambridge, Massachusetts, USA, that promotes the rights, voices, and visions of indigenous
peoples worldwide, and La Alianza para la Conservacion y el Desarrollo, a Panamanian
nonprofit organization that has worked with the Ngöbe indigenous communities in Bocas del
Toro, Panama for several years. This petition is brought on behalf of several Ngöbe indigenous
communities totaling approximately 5,000 persons who live along the Changuinola River in the
Department of Changuinola. The communities are suffering violations of their rights guaranteed
by Articles 5, 7, 13, 21, and 23 of the American Convention on Human Rights as a result of a
concession that the Government of Panama sold to AES-Changuinola, a private corporation, to
construct the Chan-75 hydroelectric dam.
Jurisdiction:
The Government of Panama ratified the American Convention on Human Rights on June
22, 1978 and acceded to the Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) on February 18,
1993. Panama accepted the jurisdiction of the Inter-American Court of Human Rights in 1990.
Exhaustion of Domestic Remedies:
This petition is admissible under the Articles 46(1)(a) and 46(2) of the American
Convention on Human Rights. Article 46(1)(a) requires that domestic remedies be satisfied in
accordance with domestic law for a submission to be admitted by the Inter-American
Commission on Human Rights. Article 46(2) of the American Convention on Human Rights
provides exceptions for the exhaustion of local remedies rule where “domestic legislation…does
not afford due process of law for the protection of the [allegedly violated rights]; the party
alleging violation of his rights has been denied access to the remedies under domestic law or has
been prevented from exhausting them; or there has been unwarranted delay in rendering a final
judgment under the aforementioned remedies.”1 The Inter-American Court of Human Rights
held in Case of the Saramaka People v. Suriname, “it is essential for the States to grant effective
protection that takes into account [indigenous peoples’] specificities, their economic and social
characteristics, as well as their situation of special vulnerability, their customary law, values, and
customs… In order to guarantee members of indigenous peoples their right to communal
property, States must establish an effective means with due process guarantees […] for them to
claim traditional lands.”2
1
American Convention on Human Rights Article 46.
Case of Saramaka People v. Suriname, (Preliminary Objections, Merits, Reparations, and Costs) Judgment of
November 28, 2007, Inter-Am.Ct.H.R., ¶ 178, citing Case of the Indigenous Community Yakye Axa v. Paraguay,
(Merits, Reparations and Costs). Judgment of June 17, 2005 Series C No. 125, para. 96.
2
3
On December 22, 2007, attorneys Donaldo Sousa and Susana Serracín filed an amparo in
Panama's Supreme Court of Justice alleging the same facts presented here.3 To date, the Court
has made no determination on the admissibility of the amparo, and the magistrate responsible for
the case is facing a huge docket backlog.4
Prior to filing the amparo, Ngöbe community members made numerous other attempts to
seek redress within Panama, including seeking assistance from the various governmental
ministries that have responsibility for protecting Panama's indigenous peoples: the Ministerio de
Desarrollo Social (MIDES) and the Defensoria del Pueblo. Ngöbe community members have
also sought assistance from the governmental authorities responsible for awarding the
concessions to AES-Changuinola: the Autoridad Nacional de Servicios Publicos and the
Autoridad Nacional del Ambiente. In every instance, the Ngöbes' pleas have either been ignored
or rebuffed on the grounds that the government ministry or agency does not have the authority to
review individual or indigenous community complaints against AES-Changuinola.
Other Petitions:
The claims presented in this petition have not been filed with any other
intergovernmental human rights organization.
Background:
The Ngöbe, who number about 170,000 people, are the largest indigenous group in
Panama. The vast majority still live traditionally in the Comarca Indigena Ngöbe-Buglé, and in
the provinces of Bocas del Toro, Chiriqui, and Veraguas in western Panama, where they sustain
themselves through subsistence agriculture and fishing. They also grow cacao and coffee as cash
crops, which they sell to get basic necessities they do not produce such as sugar, clothing, and
school supplies.
The Government of Panama (GOP) plans to build a large number of hydroelectric dams
in the next few years, mostly in western Panama on major rivers in the provinces of Chiriqui and
Bocas del Toro. In May 2007, the GOP's environmental agency, Autoridad Nacional del
Ambiente (ANAM), approved the sale of a 20-year concession of 6,215 hectares in the Palo Seco
protected forest to AES-Changuinola, a subsidiary of Allied Energy Systems Corporation (AES),
based in Arlington, Virginia, USA. The concession authorizes construction of the Chan-75
hydroelectric dam, the first of several planned dams within the Teribe-Changuinola River
watershed. The concession further transfers to AES-Changuinola authority to administer that
sector of the Palo Seco protected forest where the dam is being built. The Chan-75 dam is now
under construction.
The dam will inundate four Ngöbe villages – Charco la Pava, Valle del Rey, Guayabál,
and Changuinola Arriba – that are home to approximately 1,005 people who will have to be
3
4
The amparo is appended.
See Informe Legal de Susana Serracín Lezcano, appended to this petition.
4
relocated. Another 4,000 Ngöbe living in neighboring villages, including Nance de Riscó and
Valle de Riscó, Guayacán, and Bajo la Esperanza will be negatively affected because the dam
will destroy their transportation routes, inundate their agricultural plots, cut off their access to
their farmlands, or open up their territories to non-Ngöbe settlers.
The dam also will cause grave environmental harm throughout the La Amistad Biosphere
Reserve. Scientific experts have determined that there is a high risk of losing important
diadromous (migratory) river fish species because the dam will destroy their migration route.
Some of these species, like Joturos Pitchardi, locally called bocachica, are a central source of
protein on the Ngöbe diet.
The lands involved are all within territories that indigenous peoples have occupied for
centuries, if not millennia. Since colonial times, Ngöbe families have moved fluidly from one
region to another within this territory to meet their subsistence agriculture needs. Most of the
Ngöbe villages that will be inundated by the dam were established during the 1950s by Ngöbe
who, as a result of land pressures in neighboring communities, spread out onto then uncultivated
traditional indigenous lands and established new home sites and subsistence agriculture plots.
Four generations of Ngöbe have now lived on these lands, which have never been titled.
In 1983, the GOP adopted Decree No. 25 which created the Palo Seco protected forest.
This forest serves as a buffer area for the La Amistad International Park which is shared with
Costa Rica. The Panamanian section of the Park was approved and listed as a UNESCO World
Heritage Site in 1990. The Palo Seco protected forest is also part of the bi-national La Amistad
Biosphere Reserve that protects hundreds of thousands of lowland and highland tropical forests,
and harbors abundant wildlife and natural fisheries, as well as endemic, endangered, and
migratory species. The Biosphere Reserve sustains the livelihoods of the four distinct
indigenous peoples – the Cabecar, the Bribri, the Naso, and the Ngöbe – who survived the
Spanish conquest and the raiding expeditions promoted by the British Crown in the 18th century.
The Ngöbe indigenous communities that are the subject of this petition are all located
within the Palo Seco protected forest. At the time Palo Seco was established, many of the Ngöbe
villages including Charco la Pava, Guayabál, Valle de Riscó, and Chaguinola Arriba were wellestablished. The GOP made no effort to distinguish Ngöbe lands from government lands, nor
were the Ngöbe living there led to understand that they no longer had ownership rights to their
homesteads and agricultural plots. Indeed, many of the local inhabitants were unaware at the
time that the government had superimposed a protected forest on their territories. At no time did
the GOP compensate the Ngöbe for their lands within the protected forest. All of the lands that
the GOP conceded to AES lie within the protected forest.
In 1997, the GOP created the Comarca Indigena Ngöbe-Buglé for the Ngöbe and Buglé
indigenous peoples living in western Panama. At the time, the GOP acknowledged that the
comarca did not include all Ngöbe territories and established a legal category called "Annexed
Areas" which were never spatially defined. These are areas that allegedly are populated by both
indigenous peoples and Latinos or other non-indigenous people. The legal description of the
Annexed Areas is vague, but at the time they were created it was generally understood that
indigenous peoples living within Annexed Areas retained the same rights as indigenous peoples
5
living in the country's indigenous comarcas. It also was understood that at some point in the
future, the GOP would demarcate the indigenous lands within the Annexed Areas. Valle de
Riscó and Nance de Riscó are officially recognized Annexed Areas. Residents of these towns
have rights to agricultural lands in and around all of the other villages and move back and forth
between their village homes and agricultural lands depending on whether school is in session or
for family reasons. From the Ngöbe perspective, their indigenous territory is made up of their
village homes, their agricultural lands, and all other homes or lands to which they have use rights
under their land tenure system. There are no non-indigenous people, other than the occasional
community service worker or missionary, living in any of the Ngöbe territories that are the
subject of this petition.
In 2001, Panama received funding from the World Bank to demarcate indigenous lands
throughout the country. Demarcation of Ngöbe lands was identified as a high priority. While
indigenous – including Ngöbe – territories have been demarcated elsewhere, Ngöbe lands along
the Changuinola River in Bocas del Toro have not yet been demarcated.
The government has not made any meaningful effort to consult with the Ngöbe
communities or get their free, prior, and informed consent for the dam project on their territory.
The only public hearing prior to the concession award took place in 2005 in the town of
Almirante, which is located outside Ngöbe territory. While local ANAM and other government
officials have since met many times with the affected local communities, those meetings have
always presented the dam as a "done deal." Instead of treating the Ngöbe as an indigenous
people who must be respected and negotiated with as such, the government has consistently
treated the Ngöbe as backwards individuals and families lacking the benefits of development.
Instead of asking the Ngöbe what they want, the government tells them what they "need."
Moreover, the government has turned over to AES-Changuinola responsibility for the
Ngöbe peoples' relocation and development. In doing so, the government has washed its hands
of legal liability for the harassment and pressure to which AES-Changuinola has subjected
landholders. The government office to which the Ngöbe can complain – the Defensoria del
Pueblo – can only intervene in matters where the government is engaged in rights violations.
Only after receiving months of complaints has the GOP become engaged at all in the relocation
process, but even in those meetings, government officials have made it clear that the only thing
to negotiate is relocation and development. The GOP has not been willing to negotiate regarding
dam construction on Ngöbe lands or remedies for violations to the Ngöbe people's land rights.
Since at least May 2006, AES-Changuinola has sought to acquire Ngöbe landholdings on
a family-by-family basis without heeding traditional Ngöbe land tenure practices. Using the
prospect of large sums of money and the threat of forced evictions, AES-Changuinola has lured
heads of families, many of whom do not speak Spanish or are illiterate into signing documents
that purportedly give rights to AES-Changuinola in exchange for money or other alleged benefits
to the individual or family. In many cases, AES-Changuinola did not provide copies of these
documents to family members; in others it advised them not to show the documents to anyone.
Many people who signed such documents are either illiterate in Spanish or speak only Ngöbére.
Many of these had one impression about what they were agreeing to when they signed and only
later discovered that AES-Changuinola interpreted those documents to mean that the company
6
had the right to destroy their landholdings for the purpose of dam construction. Many Ngöbe
who initially refused to sign contracts with AES were harassed or bullied by the company and
state and local government officials into doing so.
By November 2007, road construction from the nearest paved road outside the Palo Seco
protected forest to the dam site was well underway and work had begun to develop the Chan-75
dam site on both sides of the river. Just before Christmas, after contractors working for AESChanguinola announced plans to start dynamiting the dam site, the Ngöbe set up a peaceful
protest to prevent further construction and over the Christmas holidays, construction stopped.
On January 2, 2008, police representatives approached the protesters and assured them that talks
would start the following week, at which point the protesters broke camp and returned home.
But on January 3, 2008, construction resumed. Some 200-300 Ngöbe returned to the dam site
where they were met by a squadron of approximately 50 riot police wielding clubs.
Fifty-four protesters were arrested including 13 minors (two of whom were infants.) The
police broke the nose of a nine-year-old Ivan Miranda, and injured the arm of his twelve-year-old
sister Amanda Miranda. Another protester, Ana Castillo, was pushed to the ground as her three
year old child clung to her neck. As she struggled her skirt fell down and the police refused to
allow her to get dressed. A policeman put his boot on the head of Manuel Lopez, an elderly man
who had fallen to the ground. With the exception of Ivan and Amanda Miranda Abrego, the
protesters were transported to Changuinola, a banana-plantation town located an hour away by
car, where they were held for 30 hours before being released. No charges were filed.
Ivan and Amanda Miranda were separated from their parents and taken for at least some
time to the Almirante police station. It is still not clear where they were held overnight, but
apparently Amanda was taken to the Changuinola hospital at some point. For all practical
purposes, they were sequestered and hidden during that night, apparently to conceal the fact that
they were injured.
Meanwhile, police who remained in the area conducted a house-to-house search in
Charco la Pava, the village closest to the dam site, for the leaders they held responsible for the
demonstration including the school teacher and community leader Ernesto Lopez. Using a
helicopter the police chased Lopez and two other Ngöbe leaders, Feliciano Santos and Weni
Bagamá, into the nearby hills where they remained for approximately 36 hours.
Since early January, construction has intensified and crews are now working around the
clock. Residents complain that construction noise and the intense beams of night construction
lights make it impossible for them to sleep. Roadwork has extended further upstream from the
Chan-75 dam site and onto farms of Ngöbe villagers who oppose the project. The SubCommissioner of the National Police, José Manuel Ríos, has ordered a permanent guard of
police to cordon off and patrol the Ngöbe Territory in the AES-Changuinola concession.
On December 29, Nelson Abrego, the corregidor (similar to a local magistrate but with
the power to issue arrest warrants) in Valle de Riscó, issued orders that allow police to arrest
anyone who protests or interferes with dam construction and hold them for 24 hours. Individuals
who have tried to block AES-Chaguinola from destroying their farmlands or homesteads have
7
been arrested. It is petitioners’ understanding that in January, the corregidor issued a second
order allowing the police to set up local headquarters near the dam site, and to permit only local
residents and construction workers to enter or leave the Palo Seco protected forest. Individuals
who have tried to block AES-Chaguinola from destroying their farmlands or homesteads have
been arrested. Journalists and NGO observers concerned about the case have been barred from
traveling to Charco la Pava to meet with Ngöbe villagers. Because the zone does not have
electricity and neither the Internet nor cell phones reach it, outside communication with Ngöbe
villagers now can only take place if the residents travel to Changuinola or if outsiders manage to
reach it by walking in along harrowing mountainous back routes that are not yet monitored by
the police.
The following case describes the violations of human rights experienced by one extended
family – that of Ana Castillo. Other Ngöbe families have similar stories.
Case Example: The Case of Ana Castillo and her Family Members
Ana Castillo is a 37-year-old Ngöbe woman who resides in the village of Charco la Pava
in the province of Bocas del Toro, Panama. Until the latter part of October 2007, she resided
much of the time with her 59-year-old widowed mother, Isabel Becker, in their home which was
located at the point along the Changuinola River where AES-Changuinola is now constructing
the Chan-75 hydroelectric dam. Ana Castillo has four young sons with Charco la Pava village
leader Francisco Santos, whose homestead was directly across the river from where Ana and her
mother resided. In addition, Ana has 3 children from a previous union, and Francisco has several
other children.
From January to October 2007, AES-Changuinola and national and local government
officials repeatedly pressured Isabel Becker, who is illiterate and speaks only Ngöbére, to put her
thumbprint on documents that would transfer rights to her homestead and lands to the company.
The company never sought Ana Castillo's consent even though, under Ngöbe tradition, she and
her mother shared rights to the home and agricultural lands.
On January 4, 2007, AES-Changuinola transported Isabel Becker to Panama City, where
they took her to AES' offices on the 25th floor of an office tower. Sra. Becker, whose contact
with the non-Ngöbe world had been limited to brief trips to Changuinola, had no idea how to use
the elevator. Once inside their offices, Humberto Gonzalez, the company's chairman, and Celia
Bonilla, a Ngöbére-speaking woman who works for AES-Changuinola, told her that they needed
her agreement to sell them her land that same day. Sra. Becker understood that she could not
leave their offices unless she signed. With no money for the return flight, she was dependent on
the company for transportation. After 10 to 12 hours, she finally put her thumbprint on a preprepared Spanish language document that she could not read so that she could go home. It was
her understanding at the time that she had only authorized the company to undertake temporary
work on her land. She was not given a copy of the document she thumb-printed. After months
of insistence by Ana Castillo and other family members, the company finally provided her with a
copy of the document in May.
8
Between January and October, the company continually threatened Sra. Becker and her
family, using a carrot-and-stick approach. Somebody would come to the family homestead and
threaten that the police were about to move them off of the land. Then a day later someone else
would come with food for the entire family and promises about their bright future after they
signed. The mayor of Changuinola tried to convince Sra. Becker to sign a new document, as did
the governor of Bocas del Toro. They assured her that they were looking after her interests by
making sure she got the best deal possible, but told her she had no choice but to leave.
On June 15, Ana Castillo's sister Patricia Castillo, whose house was on the same
property, signed an accord with AES-Changuinola which she understood was a rental agreement
for the use of her lands. In fact, as she later found out, the agreement called for her to abandon
her lands. After much anguish and suffering, she moved to a house on the outskirts of
Changuinola that AES-Changuinola provided for her.
On July 21, representatives from the Changuinola mayor's office and a bulldozer pulled
up to the edge of Isabel Becker and Ana Castillo's house. Sra. Becker, who then was sick in bed,
fainted. The mayor's representatives took her to the hospital in Changuinola to be checked out,
and then to a house in the outskirts of Changuinola that they told her was "her new home."
Thinking the bulldozer was knocking down her house in Charco la Pava, Sra. Becker begged
them to let her go back right away, but the mayor's representative told her she had to stay in
town. She stayed up all night crying.
In August and September the construction work picked up. By then the company had
persuaded two more of Isabel's daughters who lived near her in Charco la Pava to sign away their
rights and then knocked down their houses. They were relocated into crowded Western-style
houses in the Finca 4 sector in the outskirts of Changuinola. Even though they have received
monetary compensation, they are having difficulty coping with the cost of living, the lack of
clean drinking water, the loss of community, and the hassles of urban life.
The intimidation intensified to the point that in late October Sra. Becker gave in. She
"signed" a second document for the sale for her land (again in Spanish) that increased the amount
of money she was offered. Sra. Becker still doesn't understand what she sold, but it is clear that
AES-Changuinola believes it now owns all of Isabel's and her family members' lands.
On October 25, AES-Changuinola representatives came to their house and told Sra.
Becker that she had to leave immediately. The company then bulldozed the house into kindling
and burned the family's outbuilding. Sra. Becker's animals ran into the bush, and when her
family came back later to look for them, only a few were found. Sra. Becker lost most of her
possessions. That same day, a dozen police surrounded the property, and the GOP officially
inaugurated the Chan-75 hydroelectric dam project. No members of the Ngöbe communities
participated in the ceremony.
On November 9, 2007, Ana Castillo presented a denunciation of AES-Changuinola's
destruction of her home to ANAM. In the denunciation, she alleged that the company had
coerced her mother to relinquish all of her lands including those to which other family members
had use rights under traditional Ngöbe land tenure rules. She claimed that as a result of the
9
company's illegal actions, she lost all of her farmlands and her home. Ana further alleged that
when her mother made the agreement with AES-Changuinola, she had understood that she had
transferred to AES-Changuinola only those lands over which she had exclusive rights. ANAM
rejected Ana's denunciation on the grounds that it lacked the authority to act on it.
Two days later, AES-Changuinola offered Ana Castillo $8,000 for her share of the
homestead and farmlands that she had lost as a result of the company's negotiations with her
mother. Ana Castillo rejected the offer and told the company she was not interested in selling.
On December 5th, Ana Castillo and two other Ngöbe villagers traveled to Panama City
to seek help from the Ministerio de Desarrollo Social (MIDES), which is charged with
protecting and supporting vulnerable groups. There their complaints were rejected on the
grounds that the agency does not accept complaints.
During the same period in which AES-Changuinola was pressuring her mother to sign,
the company was exerting similar pressure on her partner, Francisco Santos, age 62, who is
illiterate but speaks some Spanish. Even before AES-Changuinola received its concession in the
Palo Seco protected forest, it began offering Francisco Santos contracts for various studies on his
property. Francisco was tempted by the money. He signed agreements on May 3, 2006 (for
$9,616 for damages to his property), October 7, 2006 (for $4,916 for using his land for studies),
and February 7, 2007 (for $4,000 for road damage related to studies) as a result of AESChanguinola activities. In May 2007, Francisco signed an additional agreement for further
perforations and studies of his land that included a statement that an agreement to sell the land to
AES-Changuinola would be contracted separately. Francisco never signed another contract, but
AES-Changuinola now claims that it is entitled to all of his lands because they have already paid
him a substantial sum of money.
On or around January 5, 2008, AES-Changuinola contractors began clear-cutting Francisco
Santos' farmland next to the river where it plans to build the dam. When his sons Benero Santos,
Abel Santos, and Francisco Castillo confronted the construction workers, police arrested them and
held them for 24 hours for disturbing the advancement of construction. By clear-cutting Francisco
Santos' farmland, 25 people, including Santos' and Ana Castillo's children, have become destitute
and dependent on the charitable assistance of the Catholic Church.
Ana Castillo and her four young sons participated in the protest on the site of her former
homestead on January 3, 2008. When the police moved in to break it up, Ana was beaten and
pushed to the ground as her three-year-old son, Ronel, clung to her neck. As she struggled, her
skirt fell to the ground and the police refused to allow her to put it back on. She and her four
children (Anselmo, age 12; Didiel, age 11; Urene, age 7, and Ronel) were taken to Changuinola
where they were held for 30 hours before being released. No charges were filed. While she was
in jail she was harassed and insulted continuously for being a community spokesperson. On
January 5, 2008, Ana experienced pain when she tried to breathe. Later in the day she began to
vomit. She was examined by a doctor in a nearby town who found bruises on her thorax.
The Ngöbe living along the Changuinola River Are Indigenous
10
At various times, GOP and AES-Changuinola representatives have asserted that the
residents of the villages along the Changuinola River are Ngöbe descendents, but are no longer
indigenous. Cultural Survival asked University of Oregon Professor of Anthropology Dr. Philip
Young, a Ngöbe specialist, to travel to Charco la Pava and neighboring Ngöbe communities to
provide us with his views on the peoples' indigeneity. He traveled there with a Ngöbérespeaking friend from a Ngöbe village in Chiriqui province from January 5-7, 2008. His report is
appended.
Dr. Young confirmed that the people in the communities along the Changuinola River
affected by the dam construction are indeed indigenous Ngöbe. All speak Ngöbére as their first
language. Many speak Spanish as well, though some women speak only Ngöbére. Dr. Young
further found that while many of the Ngöbe women in these communities do not wear the
traditional nagua on a daily basis, as do most Ngöbe women in Chiriqui, most if not all owned
naguas and wore them on special occasions. Only women who are culturally Ngöbe wear these
dresses; women who are culturally Latina or Afro-Antillean do not wear them. Furthermore,
women in these communities perform the tasks customarily assigned to women throughout the
Comarca Indigena Ngöbe-Buglé, including the manufacture of the traditional kra (net bags). Dr.
Young also noted that the Ngöbe in this region practice subsistence agriculture in the traditional
Ngöbe fashion, which they supplement with some crop production for sale, notably cacao.
Ngöbe Land Tenure Practices
Dr. Young, who has studied Ngöbe land tenure practices for over 40 years, found that
most Ngöbe families in this region continue to adhere to traditional Ngöbe land tenure practices.
Ngöbe land is owned collectively by the community. Kin groups and individual members of
families have use rights. Control of land is vested in those members of a kin group who reside
on the land. The recognized head of the kin group, usually the eldest male but sometimes a
widowed older woman, allocates use rights. Western concepts of private property ownership
have appeared in some Ngöbe communities in western Panama, but instances of actual sale of
small plots of land by one Ngöbe to another are rare. The predominant pattern is still traditional.
Concepts of land tenure among the Ngöbe in the communities along the Changuinola
River vary. Those who signed contracts with AES-Changuinola were criticized by others who
maintained that the land belonged to the kin group and was their offspring's inheritance. Nearly
all the Ngöbe in the area have voiced their opposition to anyone selling any land to AESChanguinola. Rather than talk about laws and concepts of property ownership, people that Dr.
Young spoke with claimed that "they had been living there so long that it was unthinkable to
them that now they’d be forced out with no where to go.”
Violations of Ngöbe Rights to Humane Treatment and Personal Liberty (Articles 5 and 7 of
the ACHR)
The Inter-American Court of Human Rights has long recognized that arrests of
individuals are arbitrary if the reasons for it are "unreasonable, unforeseeable or lacking in
11
proportionality."5 In this case, the standing orders of a corregidor have barred the Ngöbe from
engaging in any peaceful protest efforts to protect the lands and resources they claim as their
traditional territory. Ngöbe who engage in peaceful protest are immediately hauled off to prison
for 24 hours without ever being charged or tried. On January 3, 2008 a large peaceful protest
was met not only with arrests but also with police violence that in several cases, including those
of minor children, rose to the level of cruel or degrading treatment. Children arrested during that
demonstration were subsequently arrested and detained for 30 hours with their parents and other
adults in contravention of Article 5 of the ACHR, and two of them, Ivan and Amanda Miranda
Abrego, were held separately and away from their parents in an undisclosed location in an
apparent effort by the police to conceal the fact that they were injured.
Violations of Ngöbe Rights to Information; Participation; and to Free, Prior, and Informed
Consent (Articles 13 and 23 of the ACHR)
Public participation is linked to Article 23 of the American Convention, which provides
that every citizen shall enjoy the right "to take part in the conduct of public affairs, directly or
through freely chosen representatives," as well as to the right to seek, receive, and impart
information guaranteed by Article 13. In the Ecuador report, the Commission considered that
the protection of the right to life and physical integrity “may best be advanced through measures
to support and enhance the ability of individuals to safeguard and vindicate those rights.”6 In
that case, where the issue involved efforts to guard against environmental threats to human
health, the standard applied was "that individuals have access to: information, participation in
relevant decision-making processes, and judicial recourse.”7 The Commission recommended
that Ecuador implement measures to ensure that all persons have the right to participate,
individually and jointly, in the formulation of decisions which directly concern their
environment.8
In the Maya Toledo case, the Commission observed that one of the central elements to the
duty to protect indigenous property rights is the requirement that states undertake effective and
fully informed consultations with indigenous communities regarding acts or decisions that may
affect their traditional territories.9 Any determination of the extent to which indigenous claimants
maintain interests in lands that they have occupied and used, or decisions by the State that will
have an impact upon indigenous lands and their communities, such as the granting of
concessions to exploit the natural resources of indigenous territories, must be based upon a
process of fully informed consent on the part of the indigenous community as a whole.10 At a
minimum, this requires that all of the members of the community are fully and accurately
informed of the nature and consequences of the process and are provided with an effective
opportunity to participate individually and collectively.11 In the Saramaka case, the Inter5
Gargaram Panday v. Suriname, I/A Court H.R. Series C No. 16 (1994), ¶ 47.
Ecuador Report, OEA/Ser.L/V/II.96, Doc. 10, rev. 1, April 1997, Chap. VIII, at ¶ 93.
7
Id.
8
Id. at ¶ 94.
9
Maya Indigenous Communities of the Toledo District, Report No. 40/04, Case No. 12.053, (Belize) (October 12,
2004), ¶ 142.
10
Id. ¶142
11
Id. ¶142.
6
12
American Court of Human Rights went further, indicating that large-scale development or
investment projects that could have a major impact on indigenous and tribal territories require
not only consultation, but also free, prior, and informed consent in accordance with the peoples’
customs and traditions.12
In the Ngöbe case, the GOP made little effort to inform the community about the
proposed dam project. The GOP and the company first began negotiating construction of the
Chan-75 and two other dams on the Changuinola River in the early years of the new millennium.
At that time the company went by the name "Hydroteribe." In 2003, Hydroteribe was authorized
by the Ente Regulador de los Servicios Publicos (which later became the Autoridad Nacional de
los Servicios Publicos or ASEP) to prepare an Environmental Impact Assessment (EIA) to
develop the Chan-75 hydroelectric dam to generate electricity. When community members
learned of this in 2004, they adopted a resolution opposing it.
Every proposed hydroelectric dam enters the ASEP and ANAM pipelines separately. The
fate of one project is completely unrelated to the fate of the others. ANAM approves the EIA and
the Water Concession, and ASEP grants the concession to produce electricity. The project is not
owned by the GOP, but by the private concessionary. Whereas the process of allocating a
concession to produce electricity does not require public consultation, the approval of the EIA
does. Water concessions do not ordinarily require public consultation, but in the special case of
the Chan-75 dam, AES-Changuinola was required by ANAM to obtain a separate concession for
the Palo Seco protected forest, and this procedure did require public consultation.
In January 2005, AES-Changuinola presented its Environmental Impact Assessment for
the project to ANAM. Three months later, in April 2005, ANAM presented the EIA to the
public for comment (as well as AES' EIAs for the two other dams on the Changuinola River.)
The only public hearing prior to the approval of the EIA was held on April 2005 in the town of
Almirante, outside of Ngöbe territory. Only a few Ngöbe directly affected by the project
attended those hearings. During the public comment period, CEDETENG, a Ngöbe NGO;
ANAI, an environmental NGO; and ACD (co-petitioners in this case); as well as many
community members, sent letters complaining about the inadequacy of the EIA, especially with
regards to public consultation and to the effects the dams would have on the local communities
and on migratory fish populations that are used for food throughout the Changuinola River
watershed.
The Chan 75 concession for the production of electricity was approved by the Ente
Regulador in April 2006, around six months after the approval of the EIA by ANAM. Then, in
the fall of 2006, AES-Changuinola changed the dam design, which should have required the
preparation of a new EIA and a new public consultation process. However, ANAM approved an
“update” of the EIA, which had the effect of waiving AES' obligation to file a new EIA. Not all
of the changes made by AES-Changuinola in the project design were included in the update.
12
Case of the Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007), ¶ 134. The
Court cited in support the similar conclusion of the UN Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people. UN Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people Rodolfo Stavenhagen, submitted in accordance with Commission
resolution 2001-65 (Fifty ninth session, UN Doc. E/CN.4/2003/90, January 21, 2003, p. 2, ¶ 66.)
13
In January 2007, ANAM announced a five day period for public consultation prior to
granting to AES-Changuinola a concession for 6,215 hectares in the Palo Seco protected forest.
ANAM’s Resolution AG 0366, which regulates concessions in protected areas, requires the
agency to obtain the previous consent of traditional authorities when concessions are located
within indigenous lands. Knowing this, Francisco Santos, Ernesto Lopez, Celestino Abrego, and
Manuel Miranda of Charco de La Pava, sent ANAM a letter arguing that the concession would
violate their constitutional and human rights. Nonetheless, ANAM granted AES-Changuinola
the Palo Seco concession on May 25, 2007, and AES began construction work a few days later.
In May 2007, ANAM also approved AES' EIA for the access road to the dam site under a
category of regulatory authority that does not require public consultation (Category I), even
though ANAM guidelines for environmental impact assessments require that work undertaken in
indigenous areas or in protected forests must meet more stringent review requirements that
include public consultation. The EIA approved in May 2007 significantly altered the road
location that ANAM had approved in 2005 which would have bypassed and thus protected the
farms of the Ngöbe families living between Nance de Riscó and Charco la Pava.
In the fall of 2006, the AES employed Gestión Urbana, a private company that carries
out social studies, to manage the relocation process. Around the same time, AES began
negotiations with individual heads of families for studies and other access to their lands. The
company also began marking the contours of the lake the dam would create and started telling
Ngöbe villagers that if they did not sign agreements now, the water would come and flood them
and they would have no recourse.
AES-Changuinola made no effort to negotiate with the Ngöbe communities collectively.
Instead it tried to pick off household heads one by one using techniques that took advantage of
the household heads' cultural unfamiliarity with Western-style contract negotiations. When
household heads were unwilling to accede to company wishes, the company used harassment and
bullying tactics to get what they wanted. Another tactic AES used was to meet with family
members who had moved to Changuinola or other urban areas and seek their consent. For
example, in the case of Elin Abrego, a Ngöbe widow who does not speak Spanish, AES
contacted her daughter Celia, who lives in town, and offered her $36,000 for an agreement to
build a road on her mother's land. The daughter signed and accepted the money but warned the
company that she was not the land owner. When the rest of the family learned of the transaction
they sent AES-Changuinola a letter signed by all other family members repudiating the
agreement. Yet the company went ahead and plowed the road through Sra. Abrego's land
without her consent.
In the wake of AES-Changuinola's pressure on Isabel Becker, Francisco Santos, and
other household heads, residents of Charco la Pava traveled to traveled to Panama City in early
July 2007, where they met with national ANAM representatives to complain about the tactics the
company was using to acquire their lands. They also expressed their fears about relocation and
complained about the lack of a relocation plan in the project's EIA. Later that month, Gestión
Urbana presented its relocation plan, which called for the communities to be moved uphill to
more environmentally sensitive sections of the Palo Seco protected forest. This recommendation
14
was contrary to the EIA approved in October 2005, which forbade any relocation within Palo
Seco for environmental reasons.
In response to villagers' repeated complaints, national representatives of ANAM held
their first of two meetings with the Ngöbe communities on August 6, 2007 in Valle Rey. At that
meeting, ANAM told villagers that Gestión Urbana had created a draft relocation plan, and that
ANAM was establishing a special commission to study the agency's recommendations, get
community input, and take into account community complaints and concerns. ANAM promised
a follow-up meeting in two months, at which a comprehensive relocation plan would be
presented to the communities. Later that month, Francisco Santos, Manuel Miranda, Ismael
Quintero, and Clemente Molina presented a formal complaint to the regional office of ANAM
about illegal relocation that was already taking place within Palo Seco. A few weeks later,
ANAM changed Article 5 of the October 2005 EIA resolution to allow AES-Changuinola to
relocate people within Palo Seco.
The follow-up meeting took place three months later on November 9, 2007 in Charco de
la Pava. ANAM flew in several of its highest officials by helicopter along with AESChanguinola chair Humberto Gonzalez; Bocas del Toro Governor Esther Mena de Chiu; a local
priest, Father Corpus Lopez; and the head of the police in Bocas del Toro province, Jose Manuel
Rios. Two representatives from the Defensoria del Pueblo, the ombuds office charged with
safeguarding human rights, also attended. The villagers met them with a petition to stop dam
construction until appropriate consultations with the Ngöbe indigenous communities took place.
At the meeting, Gonzalez described the dam construction process and the benefits the
dam would have for the country as a whole. Eduardo Reyes, sub-administrator for ANAM,
promoted the dam’s alleged "benefits" to the Ngöbe, including opportunities for job training in
ecotourism, and improved opportunities for education and health care. He promised the
communities that they would be relocated to similar lands in other sections of Palo Seco
protected forest that were not under the highest levels of environmental protection, and showed
them a map that suggested where those lands might be.
Ngöbe community members then stood up, one after another, to oppose all construction
until the Ngöbe had a chance to fully understand what was happening and decide upon a
collective response. Many asserted that without further specifics they did not trust the
government's vague promises about relocation. They also expressed concern about moving
uphill to the vaguely marked areas on the ANAM maps, which they said posed environmental
risks and had poor soil. They were adamant that they did not want to move into Changuinola or
live in non-Ngöbe houses built for them there by AES, and stated that they wanted to remain
together as communities and preferred subsistence agriculture to dependency on full-time wage
labor in town. They said their traditional way of life offered them far more protection from
poverty than town living (as one Ngöbe put it, "You can't eat a house.") And they said they
feared they would lose their culture if they were forced to move to mixed suburban
neighborhoods near Changuinola like the one where AES-Changuinola moved Isabel Becker and
her daughters.
At some date after that meeting, ANAM, realizing that the lands identified for relocation
were environmentally sensitive, required AES-Changuinola to prepare a new EIA for the
15
relocation of the affected Ngöbe communities within the Palo Seco protected forest. That EIA
has now been drafted, but has not yet been approved by ANAM. Like the EIA for the new road,
AMAN has classified this EIA as Category I, which means public consultation is not required,
notwithstanding the agency's guidelines for EIAs in indigenous areas and protected forests which
require that they be placed in a higher category. Thus, while dislocation of the Ngobe is
intensifying, the Ngöbe communities have been offered no options for relocation on which they
can provide input or reach agreement
Meanwhile, AES-Changuinola has continued to negotiate land deals with individual
heads of households. As they often are illiterate, non-Spanish-speaking elderly persons, the
company frequently relies on younger family members as to serve as intermediaries. The
intermediaries have at times taken advantage of their elders by persuading them to sign
documents they do not understand or agree with. In no case has AES-Changuinola negotiated
with a Ngöbe community, as a community, or obtained a community's free, prior, and informed
consent before pressuring household heads to sign agreements.
Violations of the Ngöbe Communities' Right to Property (Article 21 of the ACHR)
The Commission has long recognized that, in the interests of development, states are free
to exploit their natural resources, and to grant concessions to private companies to do so. At the
same time, the Commission has been clear that regional human rights norms “require that
development take place under conditions that respect and ensure the human rights of the
individuals affected.”13 States, thus, are not exempt from human rights obligations in their
development projects.14
Where indigenous lands and resources are concerned, development projects must respect
indigenous collective property rights. In the Toledo Maya case, the Commission acknowledged
the importance of economic development, but insisted that “development activities must be
accompanied by appropriate and effective measures to ensure that they do not proceed at the
expense of the fundamental rights of persons who may be particularly and negatively affected,
including indigenous communities and the environment upon which they depend for their
physical, cultural and spiritual well-being.”15
The Commission also has upheld indigenous peoples' right to protect their traditional
lands and resources from exploitation and environmental degradation. The Commission has
called on States to take the measures aimed at restoring, protecting, and preserving the rights of
indigenous peoples to their ancestral territories.16
13
Ecuador Report, supra, n. 2.
Id.
15
Toledo Maya Case, supra, n.5; see also Inter-Am. C.H.R., Report on the Situation of Human Rights in Brazil,
OEA/Ser.L/V/II.97 Doc. 29 rev.1, ch. VI (Sept. 29, 1997).
16
See, e.g., Yanomami Case, Rep. No. 12/85, Case 7615 (Brazil), (1985); Mary and Carrie Dann Case, Report No.
99/99, Case 11.140 (United States) (1999); Precautionary measures, De Vereninig van Saramakaanse (Suriname)
(August 8, 2002).
14
16
In Chapter IX of its Third Report on Paraguay,17 the Commission referred to complaints
it had received that “[t]he environment is being destroyed by ranching, farming, and logging
concerns, who reduce the [indigenous people’s] traditional capacities and strategies for food and
economic activity.”18 The Commission further noted the presence of water pollution and the
construction of hydroelectric projects that flooded indigenous traditional lands and destroyed
invaluable biodiversity.19 The Commission recommended that Paraguay adopt the necessary
measures to protect the habitat of the indigenous communities from environmental degradation.20
The Inter-American Court has taken a similar view of indigenous community “property,”
extending it to lands occupied and used by indigenous peoples that are not considered by them to
be “owned.”21 In Mayagna (Sumo) Awas Tingni Community v. Nicaragua, involving a
government concession of logging rights on Awas Tingni community lands, the Court found that
Nicaragua had violated the indigenous peoples' right to property set forth in Article 21 of the
American Convention on Human Rights.22 In its decision on reparations, the Court declared that
the State must adopt domestic laws, administrative regulations, and other necessary means to
create effective surveying, demarcating, and land titling mechanisms for the properties of the
indigenous communities, in accordance with customary law and indigenous values, uses, and
customs.23 Pending the demarcation of the indigenous lands, the State must abstain from
realizing acts or allowing the realization of acts by its agents or third parties that could affect the
existence, value, use or enjoyment of those properties located in the Awas Tingni lands.24
In the case Maya Indigenous Communities of the Toledo District v. Belize,25 the
Commission expanded on the Court’s judgment in the Awas Tingni case. It held Belize
responsible for violating the rights guaranteed by Articles II (equality), XIII (property) and
XVIII (judicial protection) of the American Declaration of the Rights and Duties of Man by
granting logging and oil concessions on indigenous lands, failing to recognize and secure the
territorial rights of the Maya to those lands, and failing to afford the Maya judicial protection of
their rights due to delays in court proceedings.26 It also upheld the Maya's assertions that the
state’s contraventions had a negative impact on the natural environment upon which they depend
for subsistence.27
17
Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, Doc. 52 (Mar. 9, 2001)
Id. at ch. IX ¶ 38.
19
Id. at ch. IX ¶ 42.
20
Id. at ch. IX ¶ 50(8).
21
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (Ser. C) No. 79 (Aug. 31,
2001)
22
Id. at ¶¶ 173(1) & 173(2).
23
Id. at ¶ 173(3).
24
Id. at ¶ 173(4).
25
Toledo Maya Case, supra n. 5.
26
Id. at ¶¶ 192 – 196.
27
The petitioners claimed that international instruments, including the UN and Inter-American draft declarations
on indigenous peoples and the Rio Declaration, acknowledge the need for states to protect the natural environments
on which indigenous peoples depend and that such an obligation is “implicit in the provisions of the American
Declaration in the context of indigenous land claim issues.” Id. at ¶ 53. The Commission did not expressly address
this point, but considered that environmental damage had occurred and had a negative impact on indigenous
property rights. The Commission found that the damage resulted in part from the fact that the State failed to put into
place adequate safeguards and mechanisms, to supervise, monitor and ensure that it had sufficient staff to oversee
18
17
The Commission recommended that the State protect the Maya indigenous communities'
right to communal property that they traditionally have occupied and used, and delimit,
demarcate, and grant title to the territory in accordance with the customary land use practices of
the Maya.28 The Commission also recommended that Belize abstain from any acts that might
lead agents of the State, or third parties acting with its acquiescence or tolerance, to affect the
existence, value, use, or enjoyment of the property located in the geographic area occupied and
used by the Maya until their territory is delimited, demarcated, and titled.29 Finally, the
Commission called on the State to repair the environmental damage resulting from the logging
concessions granted by the State in Maya territory.30 The Commission's decision was
subsequently ratified by the Supreme Court of Belize which asserted that the United Nations
Declaration on the Rights of Indigenous Peoples must inform domestic law with respect to
constitutionally protected human rights.31
In another case on indigenous property rights decided on March 29, 2006, the InterAmerican Court of Human Rights unanimously found Paraguay in violation of rights to property,
life, and judicial protection of the Sawhoyamaxa indigenous community.32 The applicants
asserted that the State had failed to ensure the community's ancestral rights, making them
vulnerable to deprivations of food, health, and sanitation.33 The Court called on the State to
demarcate the indigenous lands and provide a development fund, among other remedies.34
Finally, the Court significantly extended the right to property protections afforded
indigenous peoples in its 2007 judgment in the case of the Saramaka People v. Suriname.35
Like the prior cases, this case concerned land and resource claims stemming from concessions
granted by the State to a private company to explore and extract natural resources, but a dispute
arose over whether the Saramaka, who are descendants of African slaves brought to Suriname
during the 17th century whose ancestors escaped into the interior regions and established
autonomous, matrilineal clan-based communities, were a tribal community entitled to the same
special measures afforded indigenous peoples.36 The Court found that, like other tribal peoples,
the Saramaka maintain “a strong spiritual relationship” with their traditional lands, which
constitute a source of life and cultural identity for them.37 It therefore concluded that the
jurisprudence regarding indigenous land and resource rights applies to them.
that the execution of the logging concessions would not cause further environmental damage to Maya lands and
communities. Id. at ¶ 147.
28
Id. at ¶ 197(1).
29
Id. at ¶ 197(2).
30
Id. at ¶ 197(3).
31
Judgment of the Supreme Court of Belize, Maya Villages et al. v Attorney Gen. of Belize et al., Claim No.s 171
and 172 of 2007, October 18, 2007.
32
Case of the Sawhoyamaxa Indigenous Community v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146, ¶¶
248(1)–(3) (Mar. 29, 2006).
33
Id. at ¶ 2.
34
Id. at ¶¶ 239–241.
35
Saramaka Case, supra, n. 8.
36
Id. at ¶ 78.
37
Id. at ¶ 82.
18
In the Saramaka case, the Court attempted to strike a balance between Surinam's
development needs and the Saramaka's rights to the use and enjoyment of their lands and
resources. The Court held that the protection of the right to property is not absolute and cannot
be read to preclude all concessions for exploration and extraction in the Saramaka territory. 38
Article 21 provides for the limitation of property rights under certain circumstances, but even
where the state complies with the conditions set forth in the Article, the Court will assess and
give crucial weight to the question of “whether the restriction amounts to a denial of the
[indigenous and tribal peoples’] traditions and customs in a way that endangers the very survival
of the group and its members.”39
The Court set forth three safeguards it deemed essential:
(1) the State must ensure the effective participation of the members of the community, in
conformity with their customs and traditions, regarding any development, investment,
exploration or extraction plan within their territory;
(2) the State must guarantee that the people receive a reasonable benefit from any such
plan within their territory; and
(3) the State must ensure that no concession will be issued within their territory unless
and until independent and technically capable entities, with the State’s supervision,
perform a prior environmental and social impact assessment.40
The first duty requires the State to compile and to disseminate information, and to engage
in constant good faith consultations through culturally appropriate procedures, with the objective
of reaching an agreement. “The State must also ensure that members of the community are
aware of possible risks, including environmental and health risks, in order that the proposed
development or investment plan is accepted knowingly and voluntarily.”41 Most importantly, the
Court held that large-scale development or investment projects that would have a major impact
within the territory can only proceed with the free, prior, and informed consent of the people,
according to their customs and traditions.42
Applying these tests to the facts in Saramaka, the Court found that the concessions
granted by the State failed to comply with any of the necessary safeguards and hence violated the
right to property of the Saramaka people. The Court ordered demarcation of Saramaka lands
beginning within three months and completed within three years, and abstention from use of the
territory until that is done unless with the free, informed and prior consent of the Saramaka
people; review of all concessions already granted; EIAs to be undertaken prior to any further
concessions being granted; and adoption of the legislative, administrative and other measures
necessary to ensure consultation with the Saramaka; and effective redress for them.43
38
39
40
41
42
43
Id. at ¶¶ 125-127.
Id. at ¶ 128.
Id. at ¶ 129.
Id. at ¶ 133.
Id. at ¶ 134.
Id. at ¶ 194.
19
In the Ngöbe case, neither the GOP nor AES-Changuinola has made any effort to respect
the Ngöbe's collective indigenous property rights. To the contrary, the company has insisted on
conducting negotiations as if the Ngöbe were non-indigenous and were well-versed in Western
property concepts that have no parallels in Ngöbe culture. Instead of dealing with entire
communities, the company has sought to bribe or bully consent from individual household heads
that do not have the authority to relinquish lands over which members of their families have use
rights. Moreover, most of these household heads are illiterate, do not speak much Spanish, and
have never before engaged in negotiations for the use or sale of their lands with non-Ngöbe.
Furthermore, as in the Awas Tingni, Toledo Maya, and Saramaka cases, the GOP took no
steps to ensure that the Ngöbe lands at issue here were properly surveyed, demarcated, and titled
prior to granting a concession to AES-Changuinola to build a hydroelectric dam on them.
Indeed, even though it had World Bank resources to do so since 2001, it did not make surveying,
demarcating, and titling the Ngöbe lands in this area a priority, even though it was planning as
early as 2003 to build hydroelectric dams in their territory.
20
REMEDIES REQUESTED
Petitioners respectfully request the Commission to recommend the following remedies:
1. Restitution
 The GOP should declare null and void all agreements between AES-Changuinola and
individual Ngöbe household heads and restore peaceful possession of all lands and
other property to individual Ngöbe and the community as a whole.
 The GOP should establish a credible, independent body to investigate all human
rights violations against Ngöbe individuals and communities committed between
December 2005 and the present, and provide reparations for all such violations.
 The GOP should establish a credible independent investigatory body with the
technical capability to investigate environmental damage caused by the dam project
to date, and remediate the degraded environment resulting from roads and other
construction.
2. Compensation
 The GOP should provide compensation for all violations that cannot be remedied
through restitution, including pecuniary and moral damages resulting from wrongful
arrests and detentions; irreparable damage to property and the environment; and pain,
suffering, and humiliation.
3. Guarantees of non-repetition
 The GOP should undertake an EIA and Strategic Environmental Evaluation to ensure
that future projects are consistent with protection of the lands, resources, and
environment of the Ngöbe.
 The GOP should survey, demarcate, and title all indigenous lands prior to beginning
negotiations for development projects on those lands.
 The GOP should adopt legislation that ensures that all indigenous lands are protected
from encroachment unless the indigenous communities have effectively participated
in a process, in conformity with their customs and traditions, that enables them to
give their free, prior, and informed consent regarding the development of
hydroelectric dams within their territories.
4. Attorneys fees and costs
 The GOP should pay reasonable attorneys fees and costs.
21
REQUEST FOR PROVISIONAL MEASURES
The situation facing the Ngöbe in the Changuinola River Valley is getting worse by the
day. AES-Changuinola, acting pursuant to its concession and with the full knowledge and
tolerance of the Government of Panama, threatens to deluge Ngöbe territory, and with it, the way
of life of the Ngöbe indigenous people living there. Irreparable harm is occurring now and must
be halted pending a decision on the merits of this petition.
Given the gravity and extreme urgency in this case, Petitioners respectfully request the
Commission to immediately seek an order from the Inter-American Court of Human Rights for
provisional measures to safeguard the Ngöbe's fundamental human rights and prevent even
greater devastation and destruction of their way of life.
Provisional measures are warranted whenever "the basic requirements of extreme gravity
and urgency and the prevention of irreparable damage to persons are met…."44 As former
President of the Inter-American Court of Human Rights, Judge Antônio A. Cançado Trindade,
wrote: “The object of provisional measures in international litigation is…to preserve the rights
claimed by the parties, and, thereby, the integrity of the…decision as to the merits of the case.”45
Article 63.2 of the American Convention on Human Rights establishes that the Court
may adopt provisional measures in cases of “extreme gravity and urgency" that are not yet
submitted to it, if such measures are requested by the Commission. Such emergency action is
taken without prejudice to any future decision on the merits. The statute of the Inter-American
Commission on Human Rights also authorizes the Commission to request provisional measures
from the Court. Article 19(c) states, “With respect to the States Parties to the American
Convention on Human Rights, the Commission shall discharge its duties in conformity with the
powers granted under the Convention and in the present Statute, and shall have the [power] to…
request the Inter-American Court of Human Rights to take such provisional measures as it
considers appropriate in serious and urgent cases which have not yet been submitted to it for
consideration, whenever this becomes necessary to prevent irreparable injury to persons.”46
44
Guatemalan Forensic Anthropology Foundation Case, Request for Provisional Measures in the Matter of
Guatemala, Order of the Court of July 4, 2006 Inter-Am. Ct. H.R. at “Considering” ¶ 5. See also decision of the
Court in Mayagna (Sumo) Awas Tingni, “the purpose of provisional measures, in international human rights law, is
to effectively protect fundamental rights, inasmuch as they seek to avoid irreparable damage to persons.” Provisional
Measures in Matter of Nicaragua, Order of the Court, September 6, 2002, Inter-Am. Ct. H.R., at “Considering." ¶ 9.
45
Antônio A. Cançado Trindade, “The Evolution of Provisional Measures of Protection Under the Case-law of the
Inter-American Court of Human Rights (1987-2002)”, 24 Human Rights Law Journal No. 5-8, 162, 163; see also
Loayza Tamayo Case, Order of the Court of December 13, 2000, Inter-Am. Ct. H.R. (Ser. E) (2000) at
“Considering” ¶¶ 10-11 (“The purpose of the provisional measures, in the national juridical systems (internal
procedural law) in general, is to preserve the rights of the parties in dispute, guaranteeing that the future merit
decision would not harmed by their actions pendente lite. The purpose of the provisional measures, in International
Law of Human Rights, goes beyond this, since, besides their essentially preventive nature, they effectively protect
fundamental rights, as long as they seek to prevent irreparable harm to people.”)
46
Statute of the Inter-American Commission on Human Rights, Art. 19(c); see also, Rule of Procedure of the InterAmerican Commission on Human Rights, Art. 25 (precautionary measures), and Art. 74 (provisional measures); see
also Regulations of the Inter-American Commission Art. 29(2).
22
The Court, acting under Article 63(2) of the Convention, has ordered provisional
measures of protection in numerous cases not yet submitted to it by the Commission, including
Uribana Prison (Venezuela 2007), Guatemalan Forensic Anthropology Foundation (Guatemala
2006), La Emisora de Television “Globovision” (Venezuela 2004), Urso Branco Prison (Brazil
2002), Newspaper ‘La Nacion’ (Costa Rica 2001), Community of Peace of San Jose of Apartado
(Colombia 2000), Haitians and Dominicans of Haitian Origin in the Dominican Republic
(Dominican Republic 2000), Digna Ochoa and Placido and Others (Mexico 1999), Colotenango
(Guatemala 1994-2000), Reggiardo Tolosa (Argentina 1993), Chunima (Guatemala 1991), and
Bustios-Rojas (Peru 1990).47
Moreover, the Court has been generous in ordering provisional measures to ensure the
protection of indigenous rights. For example, in Kichwa Sarayaku v. Ecuador, the Court adopted
provisional measures that called on Ecuador to take all necessary measures to protect the Kichwa
Indians’ lives and personal integrity, and to avoid immediate and irreparable damages to their
natural resources as a result of Compañía General de Combustible's oil explorations in the area
until all evidence was produced before the Court.
Should the Commission elect not to immediately ask the Court to order provisional
measures, it should nonetheless immediately exercise its authority to recommend precautionary
measures. As the Commission ruled in Juan Raul Garza v. United States, OAS member States
are legally obligated to adhere to its recommendations in such circumstances.48 In Garza, the
Commission requested that the United States stay the execution of a prisoner until his case could
be properly adjudicated by the Court. Rebuffing the State’s assertion that the Commission’s
requests for interim measures were not binding, the Commission held that a State’s failure to
adhere to properly issued precautionary measures “emasculates the efficacy of the Commission’s
process, deprives [petitioners] of their right to petition in the Inter-American human rights
system, and results in serious and irreparable harm to those individuals, and accordingly is
inconsistent with the State’s human rights obligations.”49
The Court agrees that the Commission’s recommendations for precautionary measures
are binding on OAS member States. In Loayza Tamayo v. Peru, the Court held that, pursuant to a
treaty obligation, “especially one concerning human rights,” an OAS signatory has “the
obligation to make every effort to apply the recommendations of a protection organ such as the
Inter-American Commission, which is, indeed, one of the principal organs of the Organization of
the American States, whose function is ‘to promote the observance and defense of human rights’
in the hemisphere.”50
Like the Court, the Commission has been generous in recommending precautionary
measures to ensure the protection of indigenous peoples' rights. In Maya Indigenous
Communities and their Members v. Belize, the Commission granted precautionary measures on
behalf of the Maya indigenous communities and requested Belize to take the necessary steps to
47
Provisional Measures, Jurisprudence, Inter-Amer. Ct. H.R., available at http://www.corteidh.or.cr/medidas.cfm
Juan Raul Garza v. United States, Case No. 12.243, Report No. 52/01, Annual Report of the IACHR 2000, ¶117.
49
Id. at ¶ 117.
50
I/A Court H.R., Loayzo Tamayo v. Peru, Judgment of September 17, 1997, ¶ 167, citing Articles 52 and 111 of
the OAS Charter.
48
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suspend all permits, licenses, and concessions allowing for the drilling of oil and any other
tapping of natural resources on lands used and occupied by the Maya communities in the District
of Toledo, in order to investigate the allegations in this case. In Awas Tingni Indigenous
Communities v. Nicaragua, the Commission adopted precautionary measures requesting that
Nicaragua suspend the concession it had given to SOLCARSA to carry out forestry work on the
Awas Tingni indigenous community's lands.
In the case of the Ngöbe living along the Changuinola River in Panama, the urgency is so
great that a two-step interim measures process has the potential to permit further grave harm to
take place. Persistent abuse of the Ngöbes' rights and damage to their lands, livelihoods, and
cultures needs to be halted now. Compensation paid after-the-fact will not mitigate the losses the
Ngöbe will face if construction is allowed to continue while this petition is under consideration
by the Commission.51
Jo M. Pascualucci, “The Evolution of International Indigenous Rights in the Inter-American Human Rights
System,” Human Rights Law Review, 6:2 (2006): 281, 315.
51
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PROVISIONAL MEASURES REQUESTED
Petitioners respectfully request the Commission to ask the Court to order the following
provisional measures:
1) The GOP should immediately halt all construction and other AES-Changuinola concessionrelated activity in Ngöbe territory along the Changuinola River in Bocas del Toro, Panama.
2) All concessions between the GOP and AES-Changuinola, as well as with other corporate
entities with concessions to undertake development projects on indigenous lands, should
immediately be frozen. This moratorium should remain in effect until the merits of this petition
are considered and, in no case should they recommence until:




The GOP has received from an independent and technically capable entity a complete
environmental and social impact assessment and has provided that information to the
Ngöbe communities;
The GOP has arranged for the Ngöbe communities' lands to be surveyed, demarcated,
and titled;
The GOP and the Ngöbe communities have agreed upon a consultative process that
ensures the effective participation of the members of the Ngöbe communities, in
conformity with their customs and traditions, regarding the development of hydroelectric
dams within their territory; and
The GOP and the Ngöbe communities have carried out that consultative process and have
reached a satisfactory outcome.
3) The GOP should immediately remove all police forces from indigenous lands and guarantee
the freedom of movement, expression, and association of all Ngöbe and non-Ngöbe individuals
who desire to travel to or from the region.
4) The GOP should guarantee the physical integrity and well-being of the Ngöbe leaders and
community members, and the nongovernmental organizations working with them that have been
peacefully expressing their opposition to the Chan 75 hydroelectric dam project.
25