Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

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

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

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

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

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

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

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

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

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

The Committee is raising other points in a request addressed directly to the Government.