64
238.
Similarly, the State was informed of those facts through administrative and criminal
remedies pursued before the competent authorities. Specifically, as has been found in the facts proven,
the alleged victims filed, at the administrative level, requests for the eviction of occupants with the mayor
of the district of Chepo, the governor of the province of Panamá, and the Presidency of the Republic. In
addition, once a corregidor was established and appointed for the Kuna Comarca of Madungandí, they
filed that request with this authority. Furthermore, as has been considered proven, the alleged victims
denounced on more than one occasion the illegal extraction of timber and the ecological harm caused to
the National Environmental Authority. In the criminal justice realm, many complaints were filed with the
competent authorities referring to both the illegal occupation of the indigenous territory and the
environmental harm caused by the illegal logging.
239.
The IACHR observes that despite the numerous administrative and judicial initiatives and
actions attempted by the alleged victims to obtain the relocation of the settlers, impede the continuation of
the invasions, and halt the illegal logging, the State did not adopt measures aimed at protecting the
territories and natural resources of the alleged victims. It also notes that the State has recognized the
existence of this problem in the processing of this case, and has affirmed that it will take action to prevent
and control its occurrence. Nonetheless, as reported repeatedly to the IACHR, the constant presence of
settlers and illegal logging continue devastating the environmental integrity of the territories occupied by
the Kuna of Madungandí and the Emberá of Bayano, generating a permanent state of uncertainty and
anxiety among their members.
240.
In the opinion of the IACHR, the illegal occupation of settlers and the illegal logging on
indigenous lands was due to the failure of the State to adopt timely and effective measures to prevent the
occurrence of these acts. It also considers that the lack of effective protection of the territories and natural
resources vis-à-vis outside interventions, through the application of its own constitutional and statutory
provisions, impeded the Kuna indigenous people of Madungandí and the Emberá of Bayano and their
members from freely enjoying their property, in keeping with their community tradition, and also hindered
the use and enjoyment of the natural resources in their territory.
241.
The IACHR also notes that the instant case is illustrative of the ties that the timely
recognition, demarcation, and delimitation have for the purpose of preventing and protecting the
indigenous territory and its natural resources. In effect, the breach by the State of its obligations to
recognize, delimit, and demarcate the territories claimed by the alleged victims in timely fashion made
possible the invasion of settlers on indigenous lands, and brought with it the change in the normal
development of the spiritual and cultural life of the alleged victims, as well as the development of their
traditional economic survival activities.
242.
The IACHR considers it should recall that the fact that these indigenous peoples do not
have title to their territory formally recognized by the authorities does not relieve that State of international
responsibility, thus as the case-law of the system has established, the guarantees of protection of the
right to property under the inter-American human rights instruments can be fully enforced by the
indigenous and tribal peoples with respect to the territories that belong to them but that have not yet been
338
formally titled, demarcated, or delimited by State.
Indeed, for the IACHR the states have a special
obligation to protect untitled indigenous territories from any act that may affect or diminish the existence,
value, use or enjoyment of goods, including existing natural resources, since those peoples have
communal property rights over lands and natural resources based on traditional patterns of ancestral use
339
and occupation.
338
IACHR, Application submitted to the I/A Court H.R. in the case of the Kichwa People of Sarayaku and their members v.
Ecuador, April 26, 2010, para. 125. IACHR, Report No. 40/04, Case 12,053, Maya Indigenous Communities of the Toledo District v.
Belize, October 12, 2004, paras. 142 and 153.
339
IACHR, Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources: Norms and
Jurisprudence of the Inter‐ American Human Rights System. OEA/Ser.L/V/II.Doc.56/09, December 30, 2009, para. 68.