45. The State offers no evidence in its arguments to show that the legal remedies which it says are available are indeed effective for protecting the rights invoked by the Kuna of Madungandí and Emberá of Bayano peoples. On the contrary, it has been attested that the political, administrative, and judicial actions that have been taken over the course of three decades have failed to ensure quick, timely and effective protection for the rights to property of the members of the Kuna of Madungandí and Emberá of Bayano peoples. In spite of these measures, colonist invasions threaten the integrity of the lands currently inhabited by these peoples even though, in the case of the Kuna of Madungandí, there is a Reserve Law [Ley de Comarca] that recognizes their property rights. Furthermore, the lands inhabited by the Emberá of Bayano still lack legal recognition. Based on the foregoing, the Commission considers that the State has not proven the effectiveness of the legal remedies it considers should have been exhausted by the alleged victims. 46. The Commission notes that, with respect to the demands for full payment of compensation agreed to by the State as a result of the construction of the Bayano Hydroelectric Dam in the ancestral territory of the alleged victims, the lack of demarcation of the Kuna of Madungandí territory, the legal recognition of the territory of the Emberá, that the actions taken by the alleged victims for three decades have been the only means available to them in order to demand the protection of their rights before the State. Therefore, the Commission considers that the exception under Article 46(2) of the American Convention is applicable. 47. As regards the unauthorized presence of colonists on the alleged victims’ lands, the Commission finds that even though actions of an administrative and judicial nature have been filed, these have not offered an effective protection for the rights of the alleged victims, since the presence of colonists has continued to threaten the integrity of their territory. Based on the foregoing, the Commission considers that the petitioners have exhausted that domestic remedies that have been available to them, thus the exception under Article 46(2) of the American Convention is applicable. 48. Concerning the demands for compensation for the loss of their lands and the legal recognition of the Emberá of Bayano lands, the legal remedies mentioned by the State do not offer the type of protection needed because they do not take into account the particular characteristics of indigenous peoples, especially concerning the collective nature of their demands since collective actions in Panama have been limited only to the protection of consumer rights. 49. The Commission finds that despite the fact that the Panamanian Constitution recognizes the property rights of indigenous peoples,18 that the alleged victims have not been able to protect their territories from colonist invasions. Furthermore, in the case of the Emberá of Bayano, they have not been able to obtain the recognition of their lands since the State has not established the procedures that the Constitution itself deems as necessary for these communities to obtain the legal recognition of their lands, unless said communities have a reserve.19 With respect to the creation of indigenous reserves in Panama, the Commission observes that it entails a political process that must be initiated by indigenous peoples in Panama before the legislative power which has discretion to approve the creation of reserves by means of specific legislation.20 This has meant that the Emberá of Bayano, along with other indigenous communities that have not found themselves included within a reserve, have not had an effective and permanent mechanism to request and obtain the legal recognition of their lands. Therefore, regarding the The Constitution of the Republic of Panama of 1972, provides the following at Article 123: The State guarantees for indigenous communities the reservation of the necessary lands, and collective ownership thereof, for their economic and social well-being. The Law shall set forth the procedures to be followed in order to accomplish this purpose and the definition of the respective limits within which private appropriation of lands is prohibited. 19 Indigenous Reserves [Comarcas] consist of territories with defined boundaries which are administered by the respective indigenous authorities and enjoy various levels of autonomy. The reserves are part of the political division of the Panamanian State under Article 5 of the Political Constitution which states that national laws “can create other political divisions, in order to hold them under special regimes or for reasons of administrative convenience or public service.” 20 There are five indigenous reserves in Panama, each one created by the following legislative statutes: Law 16 of February 19, 1953 creating the Kuna Yala Reserve; Law 22 of November 8, 1983 creating the Emberá-Wounaan Reserve; Law 10 of March 7, 1997 creating the Ngöbe Buglé Reserve; Law 24 of January 12, 1996 creating the Kuna of Madungandí Reserve; and Law 34 of July 26, 2000 creating the Kuna of Wargandi Reserve. 18 9