63
332
physical integrity.
These rights are directly affected when there are episodes or situations of
deforestation, contamination of the water, pollution, or other types of environmental harm on their
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ancestral territories.
234.
The IACHR considers that the States have the duty to adopt measures to prevent harm
to the environment in indigenous and tribal territories and to adopt the measures necessary to protect the
habitat of the indigenous communities, taking into account the special characteristics of indigenous
peoples, and the special and unique relationship that they have with their ancestral territories and natural
resources found therein. In adopting these measures, as the IACHR has pointed out, the states should
place “special emphasis on protecting the forests and waters, which are fundamental for their health and
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survival as communities.”
Similarly, the IACHR has previously expressed that States are under an
obligation to control and prevent illegal extractive activities such as logging, fishing, and illegal mining on
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indigenous or tribal ancestral territories, and to investigate and punish those responsible.
235.
The IACHR observes that along these same lines the Constitution of Panama prohibits,
at Article 127, the private appropriation of indigenous lands, and that the legal provisions referring to
recognition of the collective property rights of indigenous peoples exists in the Panamanian domestic
legal order. It also notes that the Panamanian legal order includes legal provisions that protect forest
resources and allow for the imposition of sanctions for illegal logging and environmental harm, in
particular the Forestry Law of February 3, 1994, and the General Law on the Environment of July 1,
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1998.
236.
In light of the foregoing considerations the IACHR considers that the State of Panama
was under the international obligation to prevent the invasion and illegal logging, and to effectively protect
the territory and natural resources of the alleged victims. In the instant case, the indigenous peoples Kuna
of the Madungandí and the Emberá of Bayano and their members constantly and consistently denounced
that settlers were continuously appropriating their territories, and that non-indigenous persons were
engaged in the logging and illegal extraction of timber and other natural resources, resulting in
environmental degradation due to deforestation.
237.
The indigenous inhabitants informed the state authorities of these facts in timely fashion,
in different forums. In particular, successive agreements were signed whereby the State acquired formal
commitments in which the state authorities announced that they would perform the work of controlling the
invasion of the territory and the illegal extraction of timber.337 Nonetheless, it was not shown before the
IACHR that those actions had been adopted in an effective manner proportional to the dimension of the
invasion of settlers, and to the serious danger of deforestation caused by the irregular loggers in their
territories.
332
IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997.
333
See IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24,
1997. IACHR, Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. IACHR,
Report on the Situation of Human Rights in Ecuador. Doc. OEA/Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. IACHR – The Situation
of Human Rights in Cuba, Seventh Report. Doc. OEA/Ser.L/V/II.61, Doc.29 rev. 1, October 4, 1983, paras. 1, 2, 41, 60, 61.
334
IACHR, Third Report on the Situation of Human Rights in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 9, 2001,
Chapter IX, paras. 38, 50 – Recommendation 8.
335
IACHR, Report on the Situation of Human Rights in Brazil. Doc. OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29,
1997, para. 33; IACHR, Democracy and Human Rights in Venezuela, 2009. Doc. OEA/Ser.L/V/II, Doc. 54, December 30, 2009.
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Article 98 of the General Law on the Environment provides: “The right of the comarcas and indigenous peoples in
relation to the use, management, and sustainable traditional tapping of the renewable natural resources situated within the
comarcas or indigenous reserves created by law is recognized. These resources must be used in keeping with the purposes of
environmental protection and conservation established in the Constitution, this Law, and all other national laws.”
337
See Annex 30. Agreement of March 23, 1990. Annex 18 to petitioners’ initial petition of May 11, 2000; Annex 29.
Resolution No. 4 issued by the Director of the Corporation dated March 16, 1989. Annex 17 to petitioners’ initial petition of May 11,
2000; and Annex 10 to the State’s communication of June 29, 2001. Annex 11. Final assessment document of the Mesa de
Concertación of the Bayano Zone, July 2, 1999. Annex 31 to petitioners’ initial petition of May 11, 2000. p. 25.