REPORT No. 125/12 CASE 12.354 MERITS KUNA INDIGENOUS PEOPLE OF MADUNGANDI AND EMBERA INDIGENOUS PEOPLE OF BAYANO AND THEIR MEMBERS PANAMA November 13, 2012 I. SUMMARY 1. On May 11, 2000, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission,” “the Commission,” or “the IACHR”) received a petition submitted by the International Human Rights Law Clinic of the Washington College of Law, the Centro de Asistencia Legal 1 Popular (CEALP), the Asociación Napguana, and Emily Yozell (hereinafter "the petitioners") , on behalf of 2 the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano and their members (hereinafter “the alleged victims”) against the Republic of Panama (hereinafter the “Panamanian State,” “Panama,” or “the State”). 2. The petitioners alleged that in the wake of the construction of the Bayano Hydroelectric Dam (Represa Hidroeléctrica del Bayano) from 1972 to 1976, the indigenous peoples Kuna of the Madungandí and the Emberá of Bayano were forced to abandon their ancestral territory, which was flooded by the reservoir of the dam. They argued that as they lacked any other alternative, they were forced to relocate to the new lands offered by the State, which it said were of better quality and greater quantity, and to accept the economic compensation that was to be paid in exchange for the destruction and flooding of their ancestral territory. They indicated that nonetheless the commitments were not carried out, for the compensation was not paid in its entirety, and the lands granted did not have the characteristics offered. As regards the Kuna indigenous people of Madungandí, they argued that while the State formally recognized their right to collective property over the lands they inhabit in 1996, it has not provided effective protection vis-à-vis the constant invasion by non-indigenous persons. With respect to the Emberá indigenous people of Bayano, they argued that to date the State has failed to title, delimit, and demarcate the territory they occupy, but to the contrary has granted property title to third persons and has allowed its illegal appropriation by peasants. 3. The State, for its part, argued that it has not violated the alleged victims’ human rights, since the construction of the hydroelectric dam was preceded by technical studies to reduce its negative impact, and that it entered into agreements with the Kuna and Emberá indigenous peoples concerning 1 In a note received on October 30, 2008, the International Human Rights Law Clinic of the Washington College of Law reported that cacique Félix Mato Mato, legal representative of the Comarca of Madungandí, had designated the law firm of Rubio, Álvarez, Solís & Abrego as their new representatives. Subsequently, in a note received on May 1, 2009, the International Human Rights Law Clinic of the Washington College of Law reported that the services of that firm had been rescinded. In that same communication, the granting of power-of-attorney by the General Cacique of the Congress of Madungandí to “International Human Rights Law Clinic of the Washington College of Law, Centro de Asistencia Legal Popular, a law firm in Panama, and the Organización Kuna de Madungandí (ORKUM).” In a brief of October 17, 2011, received by the IACHR on October 27, 2011, the petitioners submitted a note, issued by the General Kuna Congress of Madungandí and the Regional Emberá Congress of Alto Bayano, by which they reiterate the power-of-attorney conferred upon the International Human Rights Law Clinic of the Washington College of Law and granted power-of-attorney to attorney Horacio Rivera, for his representation in the case. By note received on March 2, 2012, the Emberá General Congress of Bayano reported that as regards their communities, the petitioner is CEALP, particularly attorney Héctor Huertas. In a brief received by the IACHR on July 13, 2012, a note was presented by which the General Congress of the Kuna Comarca of Madungandí authorizes Horacio Rivera as its representative for the instant case. 2 The IACHR takes note of the brief submitted on October 19th, 2012, by the CEALP, representative of the Emberá communities of Bayano in this case, in which it informed that “according to a decision of the Gunas indigenous authorities of Panama, the alphabet of the Guna language was approved, where the letter “K” was removed, therefore official documents should refer, from 2010 onwards, to name the Kuna with the correct name, that is GUNA”. Likewise, it informed that on November 22, 2010, Law 88 was enacted, "which recognizes the languages and alphabets of the indigenous peoples of Panama and lays down rules for Bilingual Intercultural Education". According to Article 2 and the Annex of the Law, the alphabet of the Kuna language does not contain the letter "K".