1

Topic:
HOW TO PROTECT THE RIGHTS OF INDIGENOUS PEOPLE
CONFLICTING BETWEEN THE COUNTRY'S DEVELOPMENT AND
THE LAWS: A CASE STUDY OF PANAMA









Mukesh Kumar













2

CONTENTS

List of Tables .... 3
List of Map ... ... 3
Foreword .. 4

1. INTRODUCTION .. 5
a) Ngobe-Bugle/Guaymi . 6
b) Kuna .... 6
c) Choco ... 7
d) Bri-Bri and Naso .... 7
2. ANALYSIS ... 9
a) Indigenous peoples existing in Panama ........ 9
b) Suitable Implications ..... 11
c) Advantages of Protection and Conservation of Indigenous People ... 12
3. RELATED LEGAL AND/OR POLICY FRAMEWORKS 12
a) Status of indigenous people under Panamanian Law/Constitution ... 12
b) Status of indigenous people under UN Human Rights System ... 12
c) The International Convention on the Elimination of All Forms of Racial
Discrimination (1965) .. 13
d) The Inter-American Human Rights System (1969) . 13
e) The Convention on Biological Diversity (CBD, 1992) . 14
f) International Labour Organization (ILO) Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries (1989) 14
4. AN ANALYSIS OF INTERNATIONAL STANDARDS AND PRESENT CONDITION OF
INDIGENOUS PEOPLE IN PANAMA 14
5. CONCLUSION .... 17
6. REFERENCES 18
7. APPENDIX .. 20


3

List of Tables
1.1) Conflict between COONAPIP and UN-REDD+ (Initially, it was only REDD) . 8
2.1) Some of the major conflicts are summarized below 10

List of Map
Panama Map showing the groups of Indigenous people ........................................................ 9



























4

FOREWORD
Violation and ignorance of rights and presence (respectively) of indigenous people
unquestionably are one of the greatest challenges of our time. To evaluate and secure the
rights of indigenous people, almost every country has made special constitutional provisions;
added to this, United Nations and some other international agencies have taken some serious
steps and developed international human rights system. And, indigenous people have been
given special attention in the international human rights system by providing various
systematic mechanisms to protect and regulate their rights.
However, despite of having various protective mechanisms and laws at national and
international levels, the condition of indigenous people is not appreciable and they are
deprived of all basic needs of mundane life. In addition, avaricious authorities have been
encroaching their rights by exploiting resources of their territories and not providing proper
compensation to them. Exploitation of natural resources, deforestation, construction of
highways, and political and social discrimination are the major problems.
Thus, this paper presented as How to Protect The Rights of Indigenous People Conflicting
between the Country's Development And Laws: A Case Study Of Panama attempts to point
out the major problems and possible implications to resolve the issues. This paper presents
different chapters, which are anticipatory, bold, and relevant to the contemporary discourse
related to the rights of indigenous people (of world in general and Panama in particular). The
first chapter addresses the various issues in general as well as indigenous groups (of Panama)
specific. Second chapter analyses their deprived condition and suggests suitable implications
i.e. how and why to restore their rights. Third chapter supports the implications by explaining
the municipal and international human rights systems. Fourth chapter, analyses by raising the
international standards, national legal provisions, and comparing with the present condition
and conflicting issues of indigenous people; and, also focuses how the rights of indigenous
people are being violated and ignored in Panama by government instruments. And, finally,
the paper concluded by suggesting the need and benefit of harmonizing the municipal laws
and international laws to protect the rights of indigenous people.




5

1. INTRODUCTION
We see it as fundamental to our own interests to support a just peace around the world
one in which individuals, and not just nations, are granted the fundamental rights that they
deserve. May 2010 National Security Strategy
Since her independence, Panama adopted Republican Government constituted with
Executive, Legislative (Congress), and Judiciary and various other auxiliary agencies
especially to provide empowerment and other basic requirements to the local people and
minorities. Interestingly, there is a system of Corregimientos; it is a kind of local authority,
which is given some administrative and legal power over the neighbouring citizens. Because
of having corregimientos system, the indigenous people of Panama enjoy some degree of
autonomy through their Comarcas (comarcas is defined geographical area particularly
linked to the indigenous people and their origin).
In addition, Panama has had a free market oriented economy supported with a very active
social policy framework. Per capita annual investment in the social community, by the Public
Sector is the highest in the region. Large share of budget (GDP) has been spent for the
Education and Health of the people. Above all, during the past years, a comprehensive Social
Security System has been developed exclusively for the purpose to provide the right of
equality to Panamanian citizens.
In spite of having all modern means of governance and well legislated law, indigenous
groups of Panama are facing range of problems including political discrimination, low
literacy level, poor health, malnutrition, and relatively higher levels of poverty. About 83 per
cent of the indigenous people are poor; on the contrary, only 33 per cent of the non-
indigenous people are poor. Among the indigenous groups, Ngobe-Bugle with 92 per cent
poverty is the poorest indigenous people, 80 per cent population of Embera-Wounaan is poor,
and 65 per cent population of Kuna is poor
1
.
In the past five years, economic growth in Panama is very strong; the Gross National Product
per capita is $13,000. But its income inequality is very high. The richest 10 per cent of the
population receives virtually half of the total national income, whereas the poorest 10 per
cent receives only 1 per cent of the total Gross Domestic Product
2
.

1
Aguilar, Renato and Huidobro, Garcia Guillermo. Panama: Indigenous People
2
United Nation: Executive Board of the United Nations Development Program, of the United Nations
Population Fund and of the United Nations Office for Project Services, (September 26, 2011).

6

Likewise, the significant disparities between indigenous and non-indigenous groups are
Lack of adequate health infrastructure among the dispersed communities;
Lack of the health personnel who can speak indigenous languages and are familiar
with them to provide proper health-care;
High level of discrimination socially, financially, and politically;
Encroachment and ignorance of their land rights; and
Deforestation for infrastructure development of the country.
Besides, some issues are the Panamanian indigenous group specific described below:
a) Ngobe-Bugle/Guaymi: Ngobe-Bugle is the indigenous group living in the Western
Panamanian provinces of Veraguas, Chiriqu and Bocas del Toro. The Ngbe-Bugle groups
are traditionally organized either in small chiefdoms or else lived nomadically in family units.
Generally, the chiefdoms had been constituted of a chief with an assistant, or cabra, and a
council of advisers. However, in the past years, the Ngbe-Bugle has adopted a system
intended to mix their traditional government with the modern Panamanian system. But they
are deprived of political leverage.
The major problems are the degradation and sequestration of their ancestral land for different
development projects including Cerro Colorado mining project. In addition, the construction
of Changuinola Dam in 2011 caused flood in huge reserve areas of the Ngbe and no
compensation were given to them
3
. Another Barro Blanco project is planned on the river
Tabasara; as the result of this, many Ngobe-Bugle settlements along the riverbanks will be
flooded. Surprisingly, the Barro Blanco project is financed by European Banks from
Germany (DEG) and Netherlands (FMO). In February, 2012 when Ngobe people protested
against the new dam, administration took strong action against them; consequently, two
Ngobe people were killed and more than 100 injured and arrested.
However, against the enduring protest, Nogbe-Bugle was granted their own comarca
(reservation) in 2004. But this allotment covers too little of their ancestral land. Nogbe-Bugle
leader also argued that it has been given due to governments interest to exploit the resources
available in their region.
b) Kuna: The Kuna people live largely on the San Blas islands; however, some small
settlements are also located at the edge of the Darin National Park, along the Colombian

3
Panama: Village of the damned". Al Jazeera English. (March 7, 2013).

7

border. Kuna indigenous group is the first indigenous group in Panama who established and
internationally recognized forest reserve in 1985. After the post-colonial era, Kuna has
exceptionally maintained its significant autonomy in Panama. They are the most
consolidated, organized, and economically strong indigenous group who successfully
preserved their land and culture. They also have strong representation in national politics.
Despite of having strong position in Panama, Kuna people are facing many problems. The
major problem is squatter incursions into their traditional lands.
The Kuna people have complained that illegal settlers are deforesting their territory. To
overcome the situation and protect their traditional land from settlers, they demand for
another Kuna reserve, but the requests have been refused
4
.
In addition, there is also issue to protect their indigenous intellectual property rights, which is
being violated. There is need to document collective knowledge of cultural practices and use
of traditional plants and medicines.
c) Choco: Also known as the Embera-Wounaan is the native of the interior of the Darien; the
largest and least-developed province of Panama. The major problems of Choco group are the
conflict with Colombia and refugees crossing border to settle on their land. To overcome the
situation, special frontier police had been posted and the local NGOs and the UN High
Commission for Refugees have had to provide protection to the Colombian refugees. The
intrusion of Colombian refugees is the major problem that frequently causes conflict between
them. In addition, because of its remote location, it is deliberately neglected region of
Panama and hence deprived of all basic needs.
d) Bri-Bri and Naso: Bri-Bri and Naso are the smaller indigenous group who live near the
border of Costa Rica. The major problem of these groups is they do not have the official
recognition of their territoriality.
In addition, like the Ngobe-Bugle, the Naso are also being affected by the hydroelectric dam
project. In 2007, the construction of the Bonyic dam began on the Teribe River in Bocas del
Toro province. To protest the project, Naso people proclaimed about seven months long
blockade, which was suppressed by the 50 paramilitaries in May 2008.

4
Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Panama: Kuna
(November 12, 2013).

8

Moreover, both the affected indigenous groups (i.e. Naso and Ngobe) claim that the
construction of dam will badly affect to their traditional livelihood and homelands. However,
their land rights and informed consent have been denied to them by the Panama Government.
Besides, the projects financed under the Kyoto Protocol initiative Clean Development
Mechanism, have also condemned for their environmental impacts on the San San Wetlands
and the La Amistad International Park which is a UNESCO World Heritage Site. Thus, in
2008, UNESCO asked the Panama Government to present a complete report regarding the
impact of the hydroelectric projects on the aquatic life of Teribe and Changuinola rivers.
Besides, the UN agency i.e. UN-REDD in Panama is not doing its job properly (this issue is
discussed in the table 1.1).
1.1) Conflict between COONAPIP and UN-REDD+ (Initially, it was only REDD)
5

COONAPIP is the National Co-ordinating Body of Indigenous Peoples in Panama and UN-REDD+ is
Efforts to Reduce Emissions from Deforestation and Forest Degradation program, which began in
2008 (proposed by the United Nations Framework Convention of Climate Change (UNFCCC)). This
program is joint effort of FAO, UNDP, and UNEP with the objective to support forest countries in
REDD+ readiness processes.
In the beginning, Panama took interest in initiating its REDD+ readiness process. But over period of
time, no promise that made to progress and development has been fulfilled; resultantly, the REDD+
Strategy met conflict with the strategy of indigenous people. And, the indigenous people planned to
withdraw from the UN-REDD Program.
Major Issues
Indigenous People are the vital player for any REDD+ strategy in Panama;
The UN-REDD program did not consider the central role of indigenous people in REDD+
ever;
The Panamanian indigenous groups have not been treated as territorial authorities with a right
to their own legitimate co-ordination structure; and
Last but not the least: there is clear absence of binding measures, which could ensure
compliance with commitments and critical instruments including safeguards.

Moreover, forests under the indigenous people are much better preserved and protected
compared to other forests of Panama. However, in recent years, these forests are also subject
to the pressures and dynamics of deforestation because of promotion of investment projects;
as part of a more common process, investments have been gaining traction in Panama.



5
Lang, Chris: COONAPIP, Panamas Indigenous Peoples Coordinating Body, withdraws from UN-REDD (March
12, 2013).

9

2. ANALYSIS

a) Indigenous peoples existing in Panama:


As per the recorded data, Panama has 3,559,408 inhabitants, of which about 10 per cent are
the indigenous people
6
. The 10 per cent of indigenous people cover about 15,103 km
2
land
area (about 20 per cent of total land) of Panama, which is recognized by law as Comarcas.
The Comarcas is a special administrative subdivision within the province of Panama, which
is governed by the traditional decision making structures of the indigenous people living in
the region. However, the laws recognizing the different comarcas are not identical because
they are given official recognition in different periods of time.
The indigenous peoples of Panama have geographically organized themselves in Indigenous
Comarcas, which are recognized as special territories and political divisions.
The oldest one is, the San Blas Comarca; it was legally recognized in 1870 by the Colombian
government (much before the independence of Panama). In 1925, Kuna also made its
stronghold position and secured their cultural and political autonomy in Panama. By the time
of 1938, the Comarca of San Blas named as Kuna Yala by the indigenous peoples has
been officially created. In 1945, an Organic Charter has formulated, which gives the details
of political organization and the legal system of the Comarca.

6
CIA World Fact Book: Panama.

10

Territories Kuna Yala
7
Embera-Wounaan
8
Madungandi Ngbe Bugl
9
Wargandi
Year 1938 1983 1996 1997 2000

So far, most of the territorial laws adopted in the establishment of indigenous territories;
however, some of the indigenous groups including Naso, Bri Bri, (Embera & Wauna have
collective lands) are still left out. In addition, the legally established comarcas are still lacking
strict recognition of their full-fledge fortitude as peoples. The Panamanian laws establishing
the comarcas are very ambiguous; parallel to this law, the Panamanian Government has also
set up other administrative authorities (within the indigenous territories, governors, mayors,
councillors, and other representatives are structured). Consequently, more often these two
parallel authorities conflict with each other regarding the political decision-making (some of
the conflicting issues are given in the following table 2.1).
2.1) Some of the major conflicts are summarized below
10
:
Panama SENAFRONT clashed with Guna Comarca authorities on the issue of the extent of
their autonomy while on border patrol operations in Guna territory.
Multiple settlers are encroaching and living on the Guna land illegally.
On the issue of illegal settlements, many times violence erupted between the Embera and
illegal settlers. Recently, Wounaan people and illegal settlers clashed over an illegal logging
project; two people died and many injured.
On the issue of proposed mining law that removed protections against new mining and
hydroelectric concessions and reinstated concession cancelled earlier, Ngabe Bugle closed the
Pan-American Highway and protested. Their protestation resulted in two deaths (policemen
killed two Ngabes), many injured, and many detained.
In March 2012, when Ngabe Bulge people were waiting for the results of a dialogue on the
mining law, security guards at the National Assembly fired; four Ngabes injured.
Panamanian Law prohibits torture and other cruel, inhuman, or degrading treatment, or
punishment but in February 2012, during protests in San Felix, Chiriqui, dozens of Ngabe
Bugle women complained of physical and sexual abuse (including two rapes) by the
government security forces. One of the rape victims was minor. Further, one woman reported
that she had not been allowed to sit down for 48 hours.
Societal and employment discrimination against indigenous people are common phenomena
in Panama. Employers deliberately do not recognize indigenous workers basic rights provided
by law, such as a minimum wage, termination pay, social security benefits, job security, and
do not provide the basic facilities including houses, food and other sanitary facilities.
Indigenous children are forced to work long hours.

7
This Law was included the land in San Blas and in the Province of Chirigui and was reformed by Law No. 16
(19 February) 1953, whereby the Comarca of San Blas is organized.
8
In the present, there are about 45 Embera-Wounaan communities that do not have property deeds. They are
communities that were left out of the Territory. Tough, the Wounaan people have historically shared their
territory with the Embera but they have different languages.
9
The Bugle group of indigenous people have shared their ancestral territories with the Ngbe but they have
different languages.
10
2012 Human Rights Reports: Panama. Bureau Of Democracy, Human Rights, And Labor 2012 Country
Reports on Human Rights Practices (April 19, 2013).

11

b) Suitable Implications
The indigenous people have natural rights to govern their territories as they want. They are
not only the representatives of traditional cultures but they are the store house of traditional
knowledge and they are the watchdog of the natural environment; therefore, it is imperative
to protect them and their rights.
However, to protect and conserve their rights and territories, Panamanian Government should
make a powerful mechanism to implement the following points:
Empowerment: All the indigenous groups must be given effective and competent
power to create their own governance so that they can exercise their own law systems,
administration, and justice in their administrative regions. National government
should not interfere in their administration rather should support (if needed).
Integration in National Politics: Certain number of (depending upon the total number
people in the respective indigenous group) of representatives from all indigenous
groups should be given secure place in national politics.
Entitlement of Land: National Government should establish strong laws to protect the
existing comarcas and also need to give officially recognition to those comarcas
which are struggling for this.
Recognition of their Ancestral Knowledge: For the purpose of conservation and to
avoid bio-piracy, the ancestral and traditional knowledge of indigenous people must
be documented and protected as their intellectual property right.
Respect for their way of Life, Culture, and Traditions: State shall create special
administrative body to insure that no one harm the life, culture, and tradition of
indigenous people.
No External Interference: No external interference should be allowed for the purpose
of exploitation of natural resources (without the permission of indigenous people).
Privilege for the Indigenous Women: Recognition of the unique contributions made
by indigenous women in respect of the possession and intergenerational transmission
of the wealth of traditional knowledge on biodiversity conservation.
Inclusion of Indigenous People in Forestry Programs: Include indigenous peoples in
policy decisions and forestry programs at all levels.
General Awareness and Training: Develop popular and general awareness on climate
change mitigation, adaptation measures and carry out education and training activities
at the local level.

12

Harmonization with REDD: Ensure indigenous peoples full and effective
participation in REDD negotiations, and their inclusion in decision making process.
c) Advantages of Protection and Conservation of Indigenous People
They have enough knowledge how to protect the forest against deforestation and the
introduction of non-indigenous tree- species.
They exploit the forests resources in a rational manner, to build their houses, access
to food and provide the community with medicines, clothing, etc.
Forests are the life saver of all human kinds, which do not only keep environment
pollution free but also provide various life saving medicines and the indigenous
people have profound knowledge of these medicines.
Indigenous people pass on cosmogonic knowledge -a key factor for forest
conservation.

3. RELATED LEGAL AND/OR POLICY FRAMEWORKS

a) Status of indigenous people under Panamanian Law/Constitution
Rights of indigenous people are enshrined in the Constitution of Panama
11
. The 1972
constitution, the government was required to establish seven 'comarcas' for different
indigenous groups, but this policy could not implemented properly; resultantly, the country
has established comarcas only for five (of the country's seven native groups). The comarcas
have a significant degree of autonomy and are free from taxation.
Further, the Legislative Assembly has an indigenous affairs commission, which is aimed at
addressing charges that the Government has neglected indigenous needs; the Ministry of
Government and Justice maintains a Directorate of Indigenous Policy; and, the Family Code
of Panama recognizes traditional indigenous cultural marriage rites as the equivalent of a
civil ceremony.
b) Status of indigenous people under UN Human Rights System
There are two significant bodies that administer the UN Human Rights System:
I. The International Covenant on Civil and Political Rights (ICCPR, 1966) and

11
See details in Appendix (Table 1).

13

II. The International Covenant on Economic, Social and Cultural Rights (ICESC,
1966)
Article 1 of ICCPR and ICESC provide:
i. All peoples have the right to self-determination, by virtue of that right they freely determine
their political status and freely pursue the economic, social and cultural development.
ii. All peoples may, for their own ends, freely dispose of their natural wealth and resources In
no case may a people be deprived of its own means of subsistence.
Article 27 of the ICCPR
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members of the group, to enjoy
their own culture, to profess and practice their own religion, or to use their own language.

Further, the HRC gave following explanation on its interpretation of Article 27:
One or other of the aspects of the rights of individuals protected [under Article 27] - for example to
enjoy a particular culture - may consist in a way of life which is closely associated with a territory and
its use of resources. This may particularly be true of members of indigenous communities constituting
a minority . . . . With regard to the exercise of the cultural rights protected under Article 27, the
Committee observes that culture manifests itself in many forms, including a particular way of life
associated with the use of land resources, specifically in the case of indigenous peoples. That right
may include such traditional activities as fishing or hunting and the right to live in reserves protected
by law. The enjoyment of those rights may require positive legal measures of protection and measures
to ensure the effective participation of members of minority communities in decisions which affect
them . . . . The Committee concludes that Article 27 relates to rights whose protection imposes
specific obligations on States parties. The protection of these rights is directed to ensure the survival
and continued development of the cultural, religious and social identity of the minorities concerned,
thus enriching the fabric of society as a whole"
12
.

c) The International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
In 1997, while giving General Recommendation on Indigenous People, the monitoring body
of the convention, the UN Committee on the Elimination of Racial Discrimination (CERD)
elaborated how the convention should be read related to indigenous people and gave detailed
guidelines to protect their rights
13
.

d) The Inter-American Human Rights System (1969)
14

Article 21. Right to Property

12
Note of the Human Rights Committee on Article 27 of the ICCPR, CCPR/1994.
13
See details in Appendix (Table 2).
14
See details in Appendix (Table 3).

14

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use
and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for reasons of
public utility or social interest, and in the cases and according to the forms established by law.

Article 23 (1)
Every citizen shall enjoy the following rights and opportunities: (a) to take part in the conduct of
public affairs, directly or through freely chosen representatives; (b) to vote and to be elected in
genuine periodic elections...(c) to have access, under general conditions of equality, to the public
service of his country
15
.

e) The Convention on Biological Diversity (CBD, 1992)
Article 10 (c)
State parties shall protect and encourage customary use of biological resources in accordance with
traditional cultural practices that are compatible with conservation or sustainable use requirements.

The Secretariat of the CBD elaborated Article 10(c) as:
In order to protect and encourage, the necessary conditions may be in place, namely, security of
tenure over traditional terrestrial and marine estates; control over and use of traditional natural
resources; and respect for the heritage, languages and cultures of indigenous and local communities,
best evidenced by appropriate legislative protection (which includes protection of intellectual
property, sacred places, and so on). Discussions on these issues in other United Nations forums have
also dealt with the issue of respect for the right to self-determination, which is often interpreted to
mean the exercise of self government
16
.

f) International Labour Organization (ILO) Convention No. 169 Concerning
Indigenous and Tribal Peoples in Independent Countries (1989)
ILO Convention imposes the responsibility of development and protection of rights of
indigenous people and also added, government should respect for their integrity
17
.

4. AN ANALYSIS OF INTERNATIONAL STANDARDS AND PRESENT
CONDITION OF INDIGENOUS PEOPLE IN PANAMA

By following the international human rights laws, the State government should guarantee to
indigenous communities the full enjoyment of all the rights recognized by the International

15
American Convention on Human Rights: (Signed at the InterAmerican Specialized Conference on Human
Rights, San Jos, Costa Rica, 22 November 1969).
16
Secretariat of the CBD, Note on Traditional Knowledge and Biological Diversity, UNEP/CBD/TKBD/1/2, 18
October 1997.
17
See details in Appendix (Table 4).

15

Convention. A special mechanism should be needed in the governance system that consults to
the indigenous people in the decision that may affect their life.
In addition, as party to the ICCPR, Panama is bound to fulfil all obligations that arise under
the International Convention. Panama must recognize and give equal rights as they pertain to
land ownership, government-provided education, health care, equal access to political
participation and representation, and the opportunity to gain equal footing as it relates to
economic survival. But Panama government has failed to provide indigenous citizens full
rights under the above listed categories and thus violated its ICCPR obligations
18
.

Panama has Violated Following Specific Rights of her Indigenous People:

I. Unlawful Discrimination Regarding Property
The Panamanian government violates ICCPR, Article 1, by failing to grant indigenous people
legal title to the lands that they have used and occupied for generations. In addition, Panama
violated Article 1 by allowing non-indigenous people to deforest these lands, by allowing
transnational companies to encroach on indigenous lands, by restricting access to lands and
resources, and by stripping indigenous lands of valuable resources. As a result, the
Panamanian government has violated Article 18 by creating a situation where traditional
indigenous culture and religion cannot exist.
II. Education and Unlawful Discrimination
Panama violates ICCPR, Article 2, by not providing adequate educational resources for
indigenous people.
III. Discrimination, Deprivation of the Right to Life and Denial of Adequate Health Care
Panama violates ICCPR Articles 6 and 24 by not providing the indigenous people access to
healthcare facilities and professionals.
IV. Denial of Political Participation and Representation
Panama violates ICCPR Article 25 by ignoring the right to political participation and
representation of indigenous people and impinging on the functions of their culture and their
rights. Panama does not recognize all of its indigenous groups.

18
Panamas ICCPR Breaches: Failure to Protect the Rights of Indigenous People: Program in International
Human Rights Law, Indiana University School of Law at Indianapolis, March 2008.

16

V. Unlawful Discrimination Causing Economic Disparity
Panama violates the indigenous right to self-determination contained in ICCPR Article 1;
likewise, it created economic disparity between its indigenous and non-indigenous people.

Furthermore, the Ministry of Government has an Office of Indigenous Policy and the
countrys law is the ultimate authority on indigenous reservations and to maintain the
indigenous groups considerable autonomy. Thus, in Panama, municipal law as well as
international law provide special recognition to the indigenous people related to their legal
and political rights. Indigenous groups have the legal rights to take part in all sorts of
decisions that affecting their lands, traditions, cultures, and the allocation and exploitation of
natural resources. Further, these laws made provisions to protect their land, ethnic identity,
native language, and the government bound to provide bilingual literacy programs to them.
But the de facto truth is, indigenous peoples participation in society has been consistently
marginalized and deliberately ignored by the government. There are seven groups of
indigenous people but only five groups are officially given comarcas and rest two the minors
(Bri-Bri and Naso) are ignored. In past 10 years, there were multiple conflicts between the
government and indigenous groups because of the governments decision that affecting
indigenous land and their freedom.















17

5. CONCLUSION

At present, for the indigenous peoples, the processes of infrastructure development, political
discrimination, integration of global economy, globalization, and more recently, the effects of
climate change are the major fundamental problems with regards to the acknowledgement of
their natural, cultural and social heritage across the world (in general) and in Panama (in
particular). Protection of their rights is not only in favour of national and international laws
but also indispensable for the restoration and conservation of the ecosystem and biodiversity.
The indigenous people use natural resources very judiciously to maintain the biodiversity of
the environment.
Most of the States along with the UN and other international bodies have formulated all the
implications, which are sufficient enough to protect the right of indigenous people; what all
need to do is, to harmonize the municipal law and international human rights system and
implement them sincerely and properly through systematic mechanisms. Thus, by following
the municipal and international laws Panama need to pay attention to correct the exacerbating
condition of her indigenous people.













18

6. REFERENCES
1. Organization of American States. Indigenous and Tribal Peoples Rights over their Ancestral
Lands and Natural Resources; Norms and Jurisprudence of the Inter-American Human Rights
System. http://www.oas.org/en/iachr/indigenous/docs/pdf/AncestralLands.pdf
2. Panama: Country Reports on Human Rights Practices for 2012.
http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper
3. Lang, Chris. COONAPIP, Panamas Indigenous Peoples Coordinating Body, denounces UN-
REDD; 30th August 2012. http://www.redd-monitor.org/2012/08/30/coonapip-panamas-
indigenous-peoples-coordinating-body-denounces-un-redd/
4. Kirby, Alex. Panamas Indigenous People Reject UN Forest Plan; June 2, 2013.
http://www.climatecentral.org/news/panamas-indigenous-people-reject-un-forest-plan-16057
5. Garca, Arias Marcial. Forests, Indigenous Peoples and Forestry Policy in Panama: An
assessment of national implementation of international standards and commitments on
traditional forest related knowledge and forest related issues.
http://binal.ac.pa/panal/downloads/fipdoc.pdf
6. Herlihy Peter H. Choc Indian Relocation in Darin, Panama.
http://www.culturalsurvival.org/publications/cultural-survival-quarterly/panama/choc-indian-
relocation-dari-n-panama
7. Arghiris, Richard. Campaign Update Panama: Another Ngbe Protestor Killed (April 10,
2013. http://www.culturalsurvival.org/news/campaign-update-panama-another-ngabe-
protestor-killed
8. Title. The Embera and Waounan Indigenous People of Panama and Colombia.
http://www.nativeplanet.org/indigenous/embera/
9. Xanthaki, Alexandra. Indigenous Rights in International Law over the Last 10 years and
Future Development. http://www.law.unimelb.edu.au/files/dmfile/download6a901.pdf
10. Title. Indigenous Peoples Rights and Transnational and Other Business Enterprises: A
Review of International Law and Jurisprudence. A Submission to the African Commission on
Human and Peoples Rights (May 2007).
http://www.forestpeoples.org/sites/fpp/files/publication/2010/08/afcomiprightssubmissionma
y07.pdf
11. UNEP: Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples
and Local Communities: Global Overview and National Case Studies.
http://www.cbd.int/doc/publications/cbd-ts-64-en.pdf
12. Wiessner, Siegfried. United Nations Declaration on the Rights of Indigenous People
13. Kain, Cunnigham Myrna. Department of Economic and Social Affairs. International Expert
Group Meeting; Indigenous Peoples and Forest (New York, 12 14 January 2011).

19

14. Kambel, Ellen-Rose. Indigenous and Tribal Government and the Decentralization
Programme in Surinam: International Legal Framework and Examples of Self-Government
Arrangements from Abroad.
http://www.decentralisatie.org/oldsite/20dlgp/k7_Tribal_govt_and_decentralization.pdf
15. Chapin, Mac. Indigenous Land Use Mapping in Central America (Yale F&ES Bulletin).
http://environment.research.yale.edu/documents/downloads/0-9/98chapin.pdf
16. Panamas ICCPR Breaches: Failure to Protect the Rights of Indigenous People: Program in
International Human Rights Law, Indiana University School of Law at Indianapolis. March
2008. http://www2.ohchr.org/english/bodies/hrc/docs/ngos/PIHRLPanama92.pdf
17. United Nations Human Rights: International Convention on the Elimination of All Forms of
Racial Discrimination. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx
18. International Labour Organization: C169 - Indigenous and Tribal Peoples Convention, 1989
(No. 169).
http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE
:C169
19. World Directory of Minorities and Indigenous Peoples. Panama: Overview.
http://www.refworld.org/docid/4954ce3823.html
20. Title. Indigenous community in Panama to see carbon payments from forest conservation.
August 28, 2008. http://news.mongabay.com/2008/0821-stri.html
21. Title. Choc (Embera-Wounan). http://www.minorityrights.org/4216/panama/choc-
emberawounan.html
22. The Panama News. 8/6. "The 'Yes' Campaign's Indigenous Problem." August 8, 2006.
http://www.thepanamanews.com/pn/v_12/issue_15/news_01.html









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7. APPENDIX
1. Panama Constitution (1972)
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Artculo 5. El territorio del Estado panameo se divide polticamente en Provincias, stas a su vez en
Distritos y los Distritos en Corregimientos. La Ley podr crear otras divisiones polticas, ya sea para
sujetarlas a regmenes especiales o por razones de conveniencia administrativa o de servicio pblico.
Artculo 86. El Estado reconoce y respeta la identidad tnica de las comunidades indgenas nacionales,
realizar programas tendientes a desarrollar los valores materiales, sociales y espirituales propios de
cada una de sus culturas y crear una institucin para el estudio, conservacin, divulgacin de las
mismas y de sus lenguas, as como la promocin del desarrollo integral de dichos grupos humanos.
Artculo 141. La Asamblea Legislativa se compondr de los Legisladores que resulten elegidos en cada
Circuito Electoral, de conformidad con las bases siguientes:
1. Cada Provincia y la Comarca de San Blas se dividirn en Circuitos Electorales.
2. La Provincia de Darin y la Comarca de San Blas tendrn dos Circuitos Electorales cada una, y en
stos se elegir un Legislador por cada Circuito Electoral.
Ley No.16 de Febrero 19 de 1953 - Por la cual se organiza la Comarca de San Blas
Artculo 12. El Estado reconoce la existencia y jurisdiccin en los asuntos concernientes a infracciones
legales, exceptuando lo referente a la aplicacin de las leyes penales del Congreso general Kuna, de los
Congresos de Pueblos y tribus y de las dems autoridades establecidas conforme a la tradicin indgena
y de la Carta Orgnica del Rgimen Comunal Indgena de San Blas. Dicha Carta tendr fuerza de Ley
una vez que la apruebe el Organo Ejecutivo, luego de establecer que no pugna con la Constitucin y las
Leyes de la Repblica.
Artculo 13. El Estado reconoce la existencia del Congreso General Kuna y de los Congresos del Pueblo
y Tribus con arreglo a su tradicin y a su Carta Orgnica, con las salvedades pertinentes para evitar
incompatibilidades con la Constitucin y las leyes de la Repblica.
LEY N 22 de 8 de noviembre de 1983 - LEY POR LA CUAL SE CREA LA COMARCA
EMBERA DE DARIEN
Artculo 2. Las tierras delimitadas en esta Ley, con excepcin de las que sean propiedad privada,
constituyen patrimonio de la Comarca Ember para el uso colectivo de los grupos indgenas Ember y
Wounan, con objeto de dedicarlas a las actividades agropecuarias e industriales, as como a otros
programas con que se promueva su desarrollo integral; por lo tanto se prohibe la apropiacin privada o
enajenacin de dichas tierras a cualquier ttulo.
Artculo 10. Se instituye como mximo organismo tradicional de decisin y expresin del pueblo
Ember, al Congreso General de la Comarca, cuyos pronunciamientos se darn a conocer por medio de
Resoluciones suscritas por la Directiva del Congreso, las que entrarn en vigencia a partir de su debida
promulgacin. Igualmente se instituyen los Congresos Regionales y los Congresos Locales como
organismos tradicionales de expresin y decisin. Se establece adems el Consejo de Nokoes como
organismo de consulta de los Congresos y de los Caciques de la Comarca.
Artculo 20. La explotacin de los recursos del subsuelo, las salinas, las minas, las agues subterrneas y
termales, las canteras y los yacimientos de minerales de cualquier clase que se encuentren dentro de los
lmites de la Comarca Ember slo podr llevarse a cabo mediante autorizacin expresa otorgada por el
Organo Ejecutivo, el que garantizar la participacin de esa comunidad en los beneficios econmicos y
sociales que se deriven de cada explotacin y asegurar el cumplimiento de los principios
constitucionales sobre rgimen ecolgico.
Para el cumplimiento de lo aqu dispuesto, en cada contrato se establecer el porcentaje de los ingresos
percibidos que el Estado destinar a la Comarca el cual ser determinado en cada caso particular, de
acuerdo con la clase de mineral objeto de la explotacin y sus niveles de rentabilidad. El uso de tales
ingresos se decidir conforme lo establezca la Carta Orgnica. En el proceso de negociacin de la
contratacin respectiva habr un representante de la Comarca Ember, el cual ser designado por el
Cacique General con anuencia del Consejo de Nokoes, quien podr presentar las aspiraciones de la
Comarca al respecto de las materias que las autoridades negocien con las partes interesadas.


19
Constitucin Poltica de la Repblica de Panam.

21

2. The International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
20

1. In the practice of the Committee on the Elimination of Racial Discrimination, in particular in the
examination of reports of States parties under article 9 of the International Convention on the
Elimination of All Forms of Racial Discrimination, the situation of indigenous peoples has always
been a matter of close attention and concern. In this respect the Committee has consistently affirmed
that discrimination against indigenous peoples falls under the scope of the Convention and that all
appropriate means must be taken to combat and eliminate such discrimination.
2. The Committee, noting that the General Assembly proclaimed the International Decade of the
Worlds Indigenous People commencing on 10 December 1994, reaffirms the provisions of the
International Convention on the Elimination of All Forms of Racial Discrimination apply to
indigenous peoples.
3. The Committee is conscious of the fact that in many regions of the world indigenous peoples have
been, and are still being, discriminated against, deprived of their human rights and fundamental
freedoms and in particular that they have lost their land and resources to colonists, commercial
companies and State enterprises. Consequently the preservation of their culture and their historical
identity has been and still is jeopardized.
4. The Committee calls in particular upon States parties to:
a. recognize and respect indigenous distinct culture, history, language and way of life as an
enrichment of the States cultural identity and to promote its preservation;
b. ensure that members of indigenous peoples are free and equal in dignity and rights and free from
any discrimination, in particular that based on indigenous origin or identity;
c. provide indigenous peoples with conditions allowing for a sustainable economic and social
development compatible with their cultural characteristics;
d. ensure that members of indigenous peoples have equal rights in respect of effective participation in
public life, and that no decisions directly relating to their rights and interests are taken without their
informed consent;
e. ensure that indigenous communities can exercise their rights to practice and revitalize their cultural
traditions and customs, to preserve and to practice their languages.
5. The Committee especially calls upon States parties to recognise and protect the rights of indigenous
peoples to own, develop, control and use their communal lands, territories and resources and, where
they have been deprived of their lands and territories traditionally owned or otherwise inhabited or
used without their free and informed consent, to take steps to return these lands and territories. Only
when this is for factual reasons not possible, the right to restitution should be substituted by the right
to just, fair and prompt compensation. Such compensation should as far as possible take the form of
lands and territories








20
CERD General Recommendation XXIII (51) concerning Indigenous Peoples Adopted at the Committees
1235th meeting, on 18 August 1997 (CERD/C/51/Misc.13/Rev.4).

22

3. The Organization of American States (OAS) Draft Declaration on the Rights of
Indigenous Peoples (1997)
This draft declaration was approved by the Inter-American Human Rights Commission in 1997
21
.
Art. XV Right to Self-Government
1. Indigenous peoples have the right to freely determine their political status and freely pursue their
economic, social, spiritual and cultural development, and accordingly, they have the right to autonomy
and self-government with regard to inter alia culture, religion, education, information, media, health,
housing, employment, social welfare, economic activities, land and resources management, the
environment and entry by non-members; and to determine ways and means for financing these
autonomous functions.
2. Indigenous peoples have the right to participate without discrimination, if they so decide, in all
decision-making, at all levels, with regard to matters that might affect their rights, lives and destiny.
They may do so directly or through representatives chosen by them in accordance with their own
procedures. They shall also have the right to maintain and develop their own indigenous decision-
making institutions, as well as equal opportunities to access and participate in all state institutions and
fora.
Art. XVI Indigenous Law
1. Indigenous law shall be recognized as a part of the states' legal system and of the framework in which
the social and economic development of the states takes place.
2. Indigenous peoples have the right to maintain and reinforce their indigenous legal systems and also to
apply them to matters within their communities, including systems related to such matters as conflict
resolution, crime prevention and maintenance of peace and harmony.
3. In the jurisdiction of any State, procedures concerning indigenous peoples or their interests shall be
conducted in such a way as to ensure the right of indigenous peoples to full representation with dignity
and equality before the law. This shall include observance of indigenous law and custom and, where
necessary, use of their language.
Art. XVII National Incorporation of Indigenous Legal and Organizational Systems
1. The States shall facilitate the inclusion in their organizational structures, the institutions and
traditional practices of indigenous peoples, and in consultation and with the consent of the peoples
concerned.
2. State institutions relevant to and serving indigenous peoples shall be designed in consultation and
with the participation of the peoples concerned so as to reinforce and promote the identity, cultures,
traditions, organization and values of those peoples.
Art. XVIII Traditional forms of Ownership and Ethnic Survival. Rights to Lands and Territories
1. Indigenous peoples have the right to the legal recognition of their varied and specific forms and
modalities of their control, ownership, use and enjoyment of territories.
2. Indigenous peoples have the right to the recognition of their property and ownership rights with
respect to lands, territories and resources they have historically occupied, as well as to the use of those to
which they have historically had access for their traditional activities and livelihood.
Art. XXI Right to Development
1. The states recognize the right of indigenous peoples to decide democratically what values, objectives,
priorities and strategies will govern and steer their development course, even where they are different
from those adopted by the national government and other segments of society. Indigenous peoples shall
be entitled to obtain on a non-discriminatory basis appropriate means for their own development
according to their preferences and values, and to contribute by their own means, as distinct societies, to
national development and international cooperation.
2. Unless exceptional circumstances so warrant in the public interest the states shall take necessary
measures to ensure that decisions regarding any plan, program or proposal affecting the rights or living
conditions of indigenous people are not made without the free and informed consent and participation of
those peoples, that their preferences are recognized and that no such plan, program or proposal that
could have harmful effects on those peoples is adopted.


21
Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia.
OEA/Ser.L/V/II.102 Doc. 9 rev. 1 (26 February 1999), Ch. X, at para. 9.

23

4. International Labour Organization Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries (1989)
22

Article 2
1. Governments shall have the responsibility for developing, with the participation of the peoples
concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee
respect for their integrity.
Article 6
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their
representative institutions, whenever consideration is being given to legislative or administrative
measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other
sectors of the population, at all levels of decision making in elective institutions and administrative
and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in
appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith
and in a form appropriate to the circumstances, with the objective of achieving agreement or consent
to the proposed measures.
Article 7 (1)
The peoples concerned shall have the right to decide their own priorities for the process of
development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they
occupy or otherwise use, and to exercise control, to the extent possible, over their own economic,
social and cultural development. In addition, they shall participate in the formulation implementation
and evaluation of plans and programmes for national and regional development which may affect
them directly.
Article 8 (2)
These peoples shall have the right to retain their own customs and institutions, where these are not
incompatible with fundamental rights defined by the national legal system and with internationally
recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts
which may arise in the application of this principle.
Article 9
1. To the extent compatible with the national legal system and internationally recognised human
rights, the methods customarily practised by the peoples concerned for dealing with offences
committed by their members shall be respected.
2. The customs of these peoples in regard to penal matters shall be taken into consideration by the
authorities and courts dealing with such cases.

5. The Draft United Nations Declaration on the Rights of Indigenous Peoples (2006)
23

20 years of study with the full participation of indigenous peoples from around the world; the report has
been produced over the status of indigenous people. It was approved by the UN Human Rights Council
in June 2006 and then submitted to the UN General Assembly in 2007 for its approval.
Article 3: Indigenous peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.
Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and means for
financing their autonomous functions.

22
C169 - Indigenous and Tribal Peoples Convention, 1989 (No. 169) Convention concerning Indigenous and
Tribal Peoples in Independent Countries (Entry into force: 05 Sep 1991) Adoption: Geneva, 76th ILC session (27
Jun 1989) - Status: Up-to-date instrument (Technical Convention).
23
United Nations Declaration on the Rights of Indigenous Peoples, approved by the Human Rights Council. UN
Doc. A/HRC/1/L.3, 23 June 2006.

24

Article 5: Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their rights to participate fully, if they so
choose, in the political, economic, social and cultural life of the State.
Article 18: Indigenous peoples have the right to participate in decision-making in matters which would
affect their rights, through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19: States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free, prior and informed consent
before adopting and implementing legislative or administrative measures that may affect them.
Article 20: 1. Indigenous peoples have the right to maintain and develop their political, economic and
social systems or institutions, to be secure in the enjoyment of their own means of subsistence and
development, and to engage freely in all their traditional and other economic activities.
2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and
fair redress.
Article 23: Indigenous peoples have the right to determine and develop priorities and strategies for
exercising their right to development. In particular, indigenous peoples have the right to be actively
involved in developing and determining health, housing and other economic and social programmes
affecting them and, as far as possible, to administer such programmes through their own institutions.
Article 26: 1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources
that they possess by reason of traditional ownership or other traditional occupation or use, as well as
those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such
recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
Article 27: States shall establish and implement, in conjunction with indigenous peoples concerned, a
fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples
laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous
peoples pertaining to their lands, territories and resources, including those which were traditionally
owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this
process.
Article 32: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the
development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their
own representative institutions in order to obtain their free and informed consent prior to the approval of
any project affecting their lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of their mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and
appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 33: 1. Indigenous peoples have the right to determine their own identity or membership in
accordance with their customs and traditions. This does not impair the right of indigenous individuals to
obtain citizenship of the States in which they live.
2. Indigenous peoples have the right to determine the structures and to select the membership of their
institutions in accordance with their own procedures.
Article 34: Indigenous peoples have the right to promote, develop and maintain their institutional
structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases
where they exist, juridical systems or customs, in accordance with international human rights standards.


Mukesh Kumar


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