HUMAN RIGHTS VIOLATIONS DIRECTED AGAINST



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@ –

and

Alianza para la Conservacion y el Desarrollo

Apartado Postal 0815-01458

Zona 4, Panama

República de Panama

(507) 223-9170

acd@ or acdpanama@



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

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]

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 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 well-established. 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 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 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 AES-Changuinola 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 Sub-Commissioner 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 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 pre-prepared 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.

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 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 AES-Changuinola 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

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 Ngöbére-speaking 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 AES-Changuinola. 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 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 Inter-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.

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 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 AES-Changuinola 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 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]

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]  

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 Inter-American 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.

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]

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.

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.

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]

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 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]

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 concession-related 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.

-----------------------

[1] American Convention on Human Rights Article 46.

[2] 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.

[3] The amparo is appended.

[4] See Informe Legal de Susana Serracín Lezcano, appended to this petition.

[5] Gargaram Panday v. Suriname, I/A Court H.R. Series C No. 16 (1994), ¶ 47.

[6] 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.

[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] Ecuador Report, supra, n. 2.

[14] 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).

[17] Third Report on the Situation of Human Rights in Paraguay, OEA/Ser.L/V/II.110, Doc. 52 (Mar. 9, 2001)

[18] 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 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.

[38] Id. at ¶¶ 125-127.

[39] Id. at ¶ 128.

[40] Id. at ¶ 129.

[41] Id. at ¶ 133.

[42] Id. at ¶ 134.

[43] Id. at ¶ 194.

[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 Inter-American Commission on Human Rights, Art. 25 (precautionary measures), and Art. 74 (provisional measures); see also Regulations of the Inter-American Commission Art. 29(2).

[47] Provisional Measures, Jurisprudence, Inter-Amer. Ct. H.R., available at

[48] 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.

[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.

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