I/A Court H.R., Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of October 14, 2014. Series C No. 284.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – Between 1972 and 1976 a hydroelectric dam was constructed in the Alto Bayano region in Panama, for which part of an indigenous reserve was flooded and its inhabitants resettled. The resettlement took place between 1973 and 1975, as the State provided alternative lands adjacent to the reserve for the indigenous communities affected. On 8 July 1971 Decree no. 156 was issued establishing a “Special Fund for Compensation and Assistance to the indigenous peoples of Bayano”. Between 1975 and 1980 the Panamanian authorities signed four main agreements with indigenous representatives regarding compensation to be paid by the State for the flooding and resettlement. In subsequent years, various meetings took place between indigenous and State representatives with the principal objective of finding a solution to conflicts over land that had arisen between indigenous peoples and non-indigenous farmers (colonos) and of recognising land rights of the Kuna and Emberá peoples.

 

At the beginning of the 1990s, the incursion of non-indigenous people into the lands of the Kuna and Emberá communities increased and conflicts in the region intensified. At least as of 1990, members of the Kuna and Emberá peoples undertook various actions to obtain compliance with the agreements, legal recognition of their lands and protection from incursions. Also, representatives of the Kuna people started administrative evacuation procedures, as well as criminal proceedings for incursion and environmental damage, while Emberá representatives started administrative procedures to obtain collective property title over their lands.

 

On 12 January 1996 the “Comarca Kuna of Madungandí” was established by Law no. 24 and between April and June 2000 its physical demarcation was carried out. Subsequently, on 23 December 2008 Law no. 72 was approved, establishing a procedure for the provision of a collective property title over indigenous lands not included in already existing reserves (comarcas). Regarding the Emberá lands, in 2011 and 2012 the Panamanian land registration authority (ANATI) issued various resolutions suspending application proceedings for private property titles within these lands. In August 2013 the authority provided a private property title to an individual within lands allocated to the Piriatí Emberá community. On 30 April 2014 the State provided a collective property title to this com- munity over land located in Tortí in the Chepo District of Panama.

 

The case before the Inter-American Court concerned the alleged international responsibility of Panama, inter alia, for a continuing violation of the collective property rights of the indigenous Kuna and Emberá and their members following the flooding of their ancestral lands and their resettlement as a result of the construction of the hydroelectric dam.

 

Law

 

(a)      Preliminary objections – The State presented three preliminary objections: (1) failure to exhaust domestic remedies, (2) lack of jurisdiction ratione temporis, and (3) lack of jurisdiction because of “statute of limitations”. All of these regarded the presumed failure by the State to pay damages to the indigenous peoples relating to the flooding of the reserve and the resettlement of its inhabitants. The Inter-American Court unanimously rejected the first preliminary objection, considering that it had not been presented at the adequate procedural moment or in a precise manner. It accepted, by five votes to one, the second preliminary objection, considering that Panama had ratified the American Convention on Human Rights (ACHR) on 22 June 1978 and recognised the jurisdiction of the Inter- American Court on 9 May 1990. It established that the facts of the case relating to the flooding, resettlement, domestic provisions regarding com- pensation, as well as agreements signed by the State and the indigenous representatives, remained outside of its temporal jurisdiction because they had occurred before 1990. Regarding the third preliminary objection, the Inter-American Court considered, by five votes to one, it unnecessary to pronounce itself, taking into account its acceptance of the second preliminary objection.

 

(b)      Substantive provisions of the American Convention on Human Rights (ACHR)

Article 21 (property), in relation to Article 1(1) (non-discrimination): The Inter-American Court reiterated its case-law according to which, inter alia: (1) the traditional possession of lands by indigenous peoples has equivalent effects to a title of ownership (“dominio pleno”) provided by the State; (2) traditional possession provides indigenous peoples with the right to obtain official recognition of their property and its registration; and (3) the State must delimit, demarcate and provide collective property title over their lands to members of indigenous communities. It considered that these elements of communal property refer to the ancestral territories of indigenous peoples, which implies traditional occupation of land. However, the State’s obligations to guarantee the enjoyment of the right to property of indigenous peoples over alternative lands are necessarily the same as other- wise the enjoyment of the right to communal property of the Kuna and Emberá peoples would be restricted due to the lack of a prolonged occupation or ancestral relation with the lands assigned to them, when such lack of occupation was precisely the consequence of the resettlement carried out by the State itself, for reasons external to the will of the indigenous peoples.

 

The Inter-American Court reiterated that Article 21 of the ACHR protects the strong bond that indigenous peoples have with their lands and that a failure by the State to delimit and effectively demarcate the borders of indigenous territory can create a climate of permanent uncertainty for its members. Taking into consideration domestic provisions, as well as treaties signed by Panama, it determined that at least since 1990, when Panama recognised the jurisdiction of the Inter-American Court, the State had the obligation to delimit, demarcate and provide legal title over the lands assigned to the Kuna and Emberá peoples.

 

Accordingly, Panama had violated Article 21 of the ACHR, in particular, for not having delimited, provided legal title over or demarcated the lands of the Kuna and Emberá peoples for periods of between 6 and 24 years after 1990 (when Panama recognised the jurisdiction of the Inter-American Court). 

 

Conclusion: violation (unanimously).

 

Article 2 (adopt domestic legal provisions), in relation to Articles 21, 8 and 25 (property, fair trial and judicial protection): Panama had not complied with its obligation to adopt domestic legal pro- visions, because it had not adopted provisions that permitted the delimitation, demarcation and pro- vision of collective property title prior to 2008. Until 2008 there had existed in Panama a practice of providing title through the creation of indigenous reserves by means of laws specific to each case, rather than through the existence of a generic regulation that established a procedure for pro- viding collective property title to indigenous peoples. For the period since 2008, when Law no. 72 was adopted, the State had not violated Article 2.

 

Conclusion: violation for the period 1990-2008 (unanimously).

 

Articles 8(1) and 25 (fair trial and judicial protection), in relation to Article 1(1) (non-discrimination): The Inter-American Court declared a violation of Articles 8(1) and 25, in relation to the Emberá communities and their members, considering that the administrative actions undertaken by them had not received a response that permitted an adequate determination of their rights. With regard to the Kuna people and its members, it found a violation of the right to a hearing within a reasonable time

(Article 8(1)) in relation to two sets of criminal proceedings and one set of administrative proceedings regarding the evacuation of illegal occupants.

Conclusion: violation (unanimously).

 

Article 2 (adopt domestic legal provisions), in relation to Articles 8 and 25 (fair trial and judicial protection): Regarding the alleged violation of Article 2, in relation to the protection of indigenous territories from intruders, the Inter-American Court considered that the State’s incompliance had not been demonstrated because no evidence or arguments had been presented that permitted the conclusion that generic recourses included in domestic legislation for the eviction of illegal occupants and criminal prosecution of those who undertake illegal actions in the territories would not be adequate to achieve the objective sought by the indigenous communities, nor why these would not produce the same result as a specific recourse for the protection of the collective property of indigenous peoples. Moreover, it considered that it had not been demonstrated that already existing crimes in Panamanian law would not permit the protection of indigenous peoples’ rights with the same efficacy, nor how the lack of a specific criminal proceeding or type of crime would have affected the rights of the indigenous communities in this particular case.

 

Conclusion: no violation (unanimously).

 

Article 24 (equal protection of the law), in relation to Article 1(1) (non-discrimination): The Inter- American Court unanimously decided not to pronounce itself regarding the alleged violation of Article 24, considering that it had not been demonstrated how allegations had translated into specific violations, apart from those already established in the judgment. Also, no evidence had been presented that would indicate a difference in treatment between indigenous peoples – specifically the alleged victims in this particular case – and non-indigenous peoples, in relation to procedures recognising property title over land.

 

(c)      Reparations – The Inter-American Court considered the indigenous peoples and their re- spective members as victims for the purposes of reparations and, apart from establishing that the judgment per se constituted a form of reparation, ordered the State to (a) publish the judgment and its summary, and transmit the same by radio; (b) carry out a public act of recognition of inter- national responsibility regarding the facts of the case; (c) demarcate the lands of certain indigenous communities whose lands had not yet been demarcated (Ipetí and Piriatí Emberá) and provide collective property title to the Ipetí community over its lands; (d) adopt the measures necessary to leave without effect the private property title that had been provided to an individual within the Emberá Piriatí territory, and (e) pay certain sums as compensation for pecuniary and non-pecuniary damage, and reimburse costs and expenses, including to the Victims’ Legal Assistance Fund.