Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee notes the information provided by the Government in its detailed report. It notes in particular the adoption of various laws creating comarcas (protected regions) and approving their respective basic charters. The Committee also notes the following national legislation: Act No. 41 of 1998 (General Act on the Environment); Title VII which is entitled "On indigenous comarcas and peoples"; Act No. 34 of 6 July 1995 (Education Act) which sets out the principle of bilingual education; and Act No. 4 of 29 January 1999 establishing equality of opportunity for women and containing a section entitled "Indigenous women". With regard to intellectual property, it notes Act No. 15 of 8 August 1994 respecting authors’ rights; Act No. 35 of 10 May 1996 on industrial property; Act No. 27 of 24 July 1997, section 10 of which prohibits the import of imitations of indigenous textiles and clothes such as molas and naguas. It takes particular note of Act No. 20 of 26 June 2000 issuing the special intellectual property rules for the collective rights of indigenous peoples and Act No. 35 of 25 July 2000 establishing the Board for the Fairs of Indigenous Peoples.

2. Article 1 of the Convention. The report indicates that, according to the 2000 census, the population in the legally established comarcas is as follows: comarca Ngöbe-Buglé: 110,619; comarca Kuna-Yala: 32,411; comarca Emberá: 8,182; comarca de Madungandí: 3,304 - resulting in a total of 154,516 persons. The Government does not currently have figures for the number of indigenous persons living outside these comarcas. The Committee recalls that, according to the 1990 census, the total indigenous population in Panama was 194,769 persons, which appears to show that there are currently at least 40,000 indigenous people who live in places other than the above comarcas. Please indicate the numbers of persons living in the comarca Kuna de Wargandí and the legal regime applicable to those not living in the legally established comarcas.

3. Articles 2 and 27. With reference to its previous comments, the Committee notes that Executive Decree No. 1 of 11 January 2000 established the National Council for Indigenous Development (CNDI), of which the National Directorate for Indigenous Policy will be the technical secretariat. The Government states that CNDI is a "consultative and deliberative body on public policies and action for indigenous peoples, through dialogue between state bodies, indigenous congresses and organizations, to ensure respect and compliance with human rights, indigenous rights and the principle of the pluri-cultural Panamanian State". It will be composed of 11 government representatives, a representative of each of the congresses and councils of the seven peoples, and nine representatives of civil society, which will include three representatives of indigenous women and one of an indigenous NGO. The Committee notes that the creation of the Council constitutes progress in the coordination of the activities undertaken by state bodies and indigenous congresses and organizations. It also notes that, under section 1(2) of the Decree, the Council will be permanent, its decisions will be the product of dialogue and "it will form part of the government entity created to take responsibility for indigenous affairs". Please indicate whether such an entity has been established, the scope of its authority, and the coordination mechanisms with CNDI and other bodies concerned. The Committee would also be grateful if the Government would provide information on the work of the CNDI if it has met and if it would provide copies of any reports that it has produced. Please also provide information on the activities undertaken by CNDI under section 3 of the Decree (functions), particularly with regard to the review, approval and follow-up of a national plan for indigenous development (subsection 4), with a copy of the above plan.

4. With regard to the programmes noted in its previous comment, namely the Guaymí Integrated Rural Development Project and the Indigenous Development Project executed by the Ministry of Agricultural Development (MIDA), the Committee notes that, as these projects only had limited resources, it was decided to use them for projects in pilot areas, such as the project to combat rural poverty in the province of Darién and the Ngöbe-Buglé Project, initiated during the last half of the 1990s with the objective of the beneficiary communities becoming areas for training and dissemination of the improved technologies introduced by the projects. Please provide information on the situation with regard to these projects, the progress made and the existence of similar projects implemented during the period covered by the next report, including those undertaken within the so-called Orientation Framework for Agricultural Policy, 1994-99, in the context of the so-called multi-sectoral programmes of financial assistance for poor areas.

5. Article 5. The Committee welcomes the fact that the new legislation respecting comarcas establishes electoral institutions, provides for collaboration between the institutions of the comarca and the State and offers opportunities for indigenous persons to develop their initiatives. While the structures are not identical in each comarca, it appears that they reflect the individual organizational structures of the various communities and, in overall terms, a system has been established of general, regional and local congresses and of executive and governing bodies, which are mainly elected. It also notes that the comarca Kuna de Wargandí, in contrast with the others, has been recognized in the category of corregimiento, which is one of the subdivisions of the Panamanian State. Noting the existence of differences in the scope of the rights set out in the legislation of the various regions, the Committee requests the Government to indicate whether it is considering incorporating, and in which manner, a systematic and coordinated approach so that the differences between the laws do not give rise to imbalances in the rights and development of the various communities.

6. Right to be consulted. The Committee notes with interest that the new legislation sets out the right to be consulted on matters which may affect indigenous peoples and that this right is set forth both in general laws, such as the General Act on the Environment, and in the various laws at the level of the comarcas. The Committee hopes that the Government will provide information on the consultations held in accordance with this Article, and on the outcome of such consultations. Please also provide information on other consultative commissions which are operating effectively, on the procedures used for consultation and on the progress achieved and the difficulties encountered.

7. Act No. 15 of 7 February 2001. The Committee notes sections 11 and 12 of this Act, establishing standards for subsidizing basic consumption and the subsistence of clients of the public electricity service and issuing other provisions, which supplement sections 48 and 50 of Act No. 10 of 1997 establishing the comarca Ngöbe-Buglé. Section 48 of Act No. 10 requires consultation prior to the exploration and exploitation of natural resources, salt deposits, mines, water, quarries and mineral deposits, and provides in its third subsection that in cases where exploitation is feasible, an environmental impact study shall be required beforehand which shall include the social impact, taking into consideration the cultural characteristics of the population affected. The indigenous authorities may submit their views within a period of not more than 30 days. By virtue of the amendment made by Act No. 15/2001, the consultations provided for in section 48 are to be held only when exploitation projects are located totally within the comarca. In this respect, the Committee notes the case of Tabasará II, in which an enterprise was interested in exploiting resources for the creation of two hydroelectric dams across the river Tabasará, which runs through the territories of the Ngöbe-Buglé people and has traditionally been related to that people’s cultural development. The dam will not be wholly in Ngöbe territory and, by virtue of the amendments to Act No. 15, the project Tabasará II received administrative authorization without any consultations with the Ngöbe-Buglé community. Noting with interest that the Constitutional Chamber of the Supreme Court of Panama ordered the suspension of the project, the Committee hopes that the Government will keep it informed of developments in this case. In more general terms, the Committee requests information on any amendment to Act No. 15 with a view to ensuring that, wherever indigenous interests may be affected, the populations and their representatives are able, in collaboration with the Government, as set out in Article 5(a) of the Convention, to participate in seeking solutions that are satisfactory for both parties.

8. With reference to the previous paragraph, the Committee notes that section 45 of the basic charter of the comarca Kuna de Madungandí and section 96(2) of the basic charter of Emberá Darién require an environmental impact study to be undertaken prior to any exploration or exploitation and it hopes that the Government will consider this matter in a systematic and coordinated manner so as not to limit the rights of any indigenous people in relation to the rights of others and that it will adopt the same global approach with regard to the fundamental rights of these peoples.

9. Opportunities for the full development of indigenous initiatives. The Committee notes that the basic charters of the comarcas Emberá-Wounaan de Darién, Kuna de Madungandí, Ngöbe-Buglé and Kuna de Wargandí set out in similar terms that their general congresses shall prepare plans for the management and development of the region. Please provide information on the application of these charters, with an indication, where possible, of the development plans prepared under the terms of the charters and the implementation and outcome of the plans.

10. Articles 7 and 8. The Committee notes with interest that the new legislation refers to differing extents to the customary law of indigenous populations and recognizes their own methods of social control. In this respect, the basic charter of Emberá Wounaan dedicates Title XI, Chapter I, to the administration of traditional justice. However, the Committee notes that, while this charter makes explicit reference to traditional justice, this reference is not included in other cases, such as the basic charter of the Kuna de Madungandí region. Furthermore, in the basic charters of Emberá Wounaan (section 123), the comarca Kuna de Madungandí (section 65) and the Act creating the Ngöbe-Buglé (section 40), it is provided that traditional standards of conduct shall be taken into account in the administration of justice. Please provide information on the application of these provisions in practice. Furthermore, noting that there is no reference to traditional standards of conduct in the Act establishing the comarca Kuna de Wargandí, the Committee hopes that these will be included in some manner. Please also indicate the extent to which the customs of these populations are borne in mind in regard to penal matters and, where appropriate, please provide copies of the relevant judicial decisions.

11. Articles 11 to 14 (land rights). The Committee also notes with interest that the new laws respecting the comarcas constitute significant progress with regard to the delimitation of indigenous lands. With reference to its previous comment on the conflict between indigenous peoples in the comarca Kuna de Madungandí and the settlers who were systematically invading their lands, the Committee notes the warning by the Ministry of Justice that "there are unscrupulous persons who are endeavouring to incite the unwary to invade the above lands (…) and that the Ministry of Justice knows who they are and will take legal action against these persons and against whomsoever is in violation of the law". The Committee requests the Government to indicate whether action has indeed been taken against the persons who incited others to invade or who have invaded the lands of the comarca Kuna de Madungandí and whether it has managed to guarantee the peaceful ownership by the indigenous population of the lands of the comarca. Also on this matter, the Committee hopes that the Government will keep it informed of developments related to the petition received by the Inter-American Commission on Human Rights on 11 January 2001 (No. 12,354) respecting the land rights of the Kuna and Emberá peoples which, it is reported, is currently being settled amicably.

12. The Committee notes that the various laws respecting the comarcas set forth the principle of the collective ownership of the land. In addition, it notes with interest section 102 of the General Act on the Environment, under which the lands included in comarcas and Indian reserves are protected in terms that are very similar to those of Conventions Nos. 107 and 169. Sections 103 and 105 of the same Act set forth the right to compensation when projects are undertaken in Indian lands and to a share in the profits when this is not envisaged in the laws in force. In this respect, the Committee notes from the ILO publication cited in the observation that "the Kunas de Madungandí and the Emberá were affected by the construction of this hydroelectric dam (Ascanio Villalaz) and that, despite offering their best lands, they do not have electricity and were never compensated". The Committee hopes that the Government will be able to provide information on this matter, and particularly on the compensation and participation in the profits from the hydroelectric dam Ascanio Villalaz. Please also provide information on the ownership regime for land applied to indigenous populations outside the limits of the comarcas.

13. Articles 16 and 17. With reference to its previous comment, the Committee notes the information provided by the Government on the vocational training activities of the National Vocational Training Institute (INAFORP) and that, as part of the programme to expand the Institute, the residential and catering facilities of the vocational training centres in Arimae (Darién), Kuna Yala (San Ignacio de Tupile), Las Lajas (Chiriquí) and Chiriquí Grande (Bocas del Toro) are being constructed. Please indicate the indigenous comarcas which have training centres and whether the courses provided and the training programmes were prepared in consultation with the indigenous populations concerned so as to ensure that they meet their needs.

14. Article 18. The Committee welcomes the new legislation adopted in this area, and particularly Act No. 20 of 26 June 2000 establishing the special rules on indigenous intellectual property, which creates, within the Intellectual Property Register, the Department of Collective Rights and Expressions of Folklore for the registration of the collective rights of indigenous peoples (sections 6 to 14). Act No. 35 of 25 July 2000, establishing the Board of Fairs of Indigenous Peoples, is also particularly significant. This Act promotes handicraft products of indigenous peoples with a view to improving their income. Please provide information on the application of these laws in practice, with an indication for example as to whether collective rights have actually been registered.

15. Article 20. With reference to its previous comment, the Committee notes that the project referred to in that comment has been replaced by the project for "community development and the production of food in marginal areas of Panama", with the cooperation of the World Food Programme. It also notes the various projects undertaken since 1995 by the Ministry of Health to improve the health and diet of indigenous populations, and it notes the appended documentation. Furthermore, with the financing of the Pan-American Health Organization (PAHO), the process of strengthening health committees has been continued with a view to the promotion and rehabilitation of the health of indigenous populations, with the result that there are currently some 100 health committees composed of indigenous persons. Noting the initiatives on traditional medicine and the existence of a preliminary draft text to establish an institute of traditional medicine, the Committee welcomes the value that is being attached to traditional medicine and hopes to be provided with information on the Tramil project and the planned institute of traditional medicine. It would be grateful for information on whether health committees covering traditional medicine have been established in other indigenous comarcas.

16. The Government’s report states that the Ministry of Health prepared a document containing general guidance for the formulation of health policies for indigenous peoples, on which consultations were held in workshops with the congresses of indigenous comarcas. The Committee would be grateful to be kept informed of the application of these health policies and their results, as well as on the progress made with the subregional project on inter-cultural and gender equity in the health of indigenous peoples, within the framework of the 2000-03 reform.

17. The Committee also notes the figures provided by the Government in its report on the personnel engaged in health services in indigenous areas, which show that while there are 16 doctors in Kuna Yala, there are none in Emberá Wounaan, and that in Ngöbe-Buglé, which has over 100,000 inhabitants, there are only three. The Committee would be grateful if the Government would provide information on whether measures are envisaged to facilitate and promote the installation of doctors in indigenous comarcas and requests the Government to continue providing information on the personnel working in the health areas in these regions.

18. Articles 21 to 24. The Committee notes Act No. 34 of 6 July 1995 (the Education Act), which sets forth the principle of inter-cultural bilingual education, section 250 of which provides that the educational programmes for indigenous communities shall include elements and values from their own cultural background. For the implementation of inter-cultural bilingual education, Executive Decree No. 94 of 25 May 1998 established the technical coordination unit for the implementation of special programmes in indigenous areas. Nevertheless, the Committee regrets to note the many difficulties resulting in the educational services in indigenous comarcas being insufficient and inadequate and the fact that it has not been possible to implement inter-cultural bilingual education, nor to formulate education plans incorporating the values and needs of indigenous populations. According to the Government’s report, the socio-economic conditions of the indigenous population are critical, due to extreme poverty and child malnutrition, which is reflected in a high percentage of school failures, drop-outs and the need to repeat courses. In practice, teaching is only provided in Spanish, as schools in indigenous areas do not have the necessary resources and infrastructure, in view of the lack of investment and the low level of resources allocated by the national budget for educational projects in indigenous comarcas. Most projects have failed or have been interrupted as a result of failure to provide the resources allocated. The Committee is aware of the economic difficulties that the country is experiencing and hopes that the Government will undertake systematic and coordinated programmes in the educational field, taking into account the right of indigenous peoples to receive education in their own language and based on plans that are adapted to their socio-cultural values and needs, and that it will allocate the necessary resources to them. The Committee would be grateful if the Government would keep it informed of this matter.