Human rights violations by the government of panama



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HUMAN RIGHTS VIOLATIONS

BY THE GOVERNMENT OF PANAMA

DIRECTED AGAINST NGÖBE INDIGENOUS COMMUNITIES AND INDIVIDUALS IN THE CHANGUINOLA RIVER VALLEY, BOCAS DEL TORO, PANAMA


Petition to the Inter-American Commission on Human Rights

March 7, 2008

Petitioners:


Cultural Survival

215 Prospect Street

Cambridge, MA 02139

617-441-5400 x. 16



elutz@cs.orgwww.cs.org
and
Alianza para la Conservacion y el Desarrollo

Apartado Postal 0815-01458

Zona 4, Panama

República de Panama

(507) 223-9170
acd@acdpanama.org or acdpanama@gmail.com

www.acdpanama.org
by
Ellen L. Lutz, Esq.

Executive Director Cultural Survival



Table of Contents

Introduction


Jurisdiction
Exhaustion of Domestic Remedies
Other Petitions
Background
Case Example: The Case of Ana Castillo and her Family Members
The Ngöbe living along the Changuinola River Are Indigenous
Ngöbe Land Tenure Practices
Violations of Ngöbe Rights to Humane Treatment and Personal

Liberty (Articles 5 and 7 of the ACHR)


Violations of Ngöbe Rights to Information; Participation; and to

Free, Prior, and Informed Consent (Articles 13 and 23 of the ACHR)


Violations of the Ngöbe Communities' Right to Property

(Article 21 of the ACHR)


Remedies Requested
Request for Provisional Measures
Provisional Measures Requested
List of Appended Documents, Photos, and Maps


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.

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