Ngobe Indigenous Communities v. Panama

Report No. 75/09, Petition 286-08, August 5, 2009; OEA/Ser.L/V/II., Doc. 51, corr. 1, 30 December 2009
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In May 2007, the State of Panama, without community consultation, granted a concession for the construction of a hydroelectric dam within the traditional lands of an indigenous community, the Ngöbe. Although the construction of the dam was still in its initial stages at the time the petition was filed, the petitioner alleged that the work had already had substantial harmful effects on the environment and Ngöbe community. The preliminary clearing and building work on the dam was said to have polluted waters which the Ngöbe depended upon, caused significant noise pollution, and to have released harmful levels of dust into adjacent communities. Government police forces had been dispatched to the region to patrol the construction zone and had been involved in the violent suppression of community dissent, and in restricting the movement of the Ngöbe. In addition to these allegations, the petitioners claimed that, ultimately, the construction of the dam would have the effect of displacing Ngöbe residents from their traditional lands, and would cause serious damage to the environment and to the Ngöbe way of life. The petitioners also noted that construction on the dam had continued despite the fact that their attempts to seek domestic remedies had not yet met with any final decisions by Panamanian courts or authorities.

The petition and a request for adoption of provisional measures claimed that the state of Panama was responsible for violating the rights enshrined by the American Convention of Human Rights in articles 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), 13 (freedom of thought and expression), 19 (rights of the child), 21 (right to property), 22 (freedom of movement and residence), 23 (right to participate in the government), and 25 (judicial protection). On June 17, 2009, the Commission approved precautionary measures in favor of the Ngöbe. The report at hand, issued on August 5, 2009, contained the Commission’s ruling on the admissibility of the petition

Without issuing any determination on the merits of the case, the Commission concluded it was competent to hear the complaint and that the petition was admissible with respect to the alleged violations of rights under articles 5, 7, 8, 13, 19, 21, 22, 23 and 25 of the American Convention on Human Rights. To this end, the Commission decided that the alleged facts in the petition could indeed characterize the alleged violations of rights, thereby satisfying the admissibility requirements contained in Article 47(b) of the Convention. The Commission also decided to invoke the principle of jura novit curia (the court knows the law) to permit further potential rights violations to be considered with respect to the matter: specifically the Commission decided to consider whether there had also been violations of obligations and rights under Articles 2 (domestic legal effects), 16 (freedom of association) and 24 (equal protection) of the Convention.

The major issue of contention in determining the admissibility of the petition arose from the State’s claim that domestic remedies had not been exhausted by the petitioner as required by Article 46(1) of the Convention (and indeed that attempts to secure domestic remedies were ongoing). However, Article 46(2) of the Convention provides for exceptions to this rule: where domestic legislation does not afford due process, or where the alleged victim has not been allowed access to remedies (or the opportunity to exhaust them), or where an unwarranted delay exists. In its analysis, the Commission found that, given the time-sensitive character of the situation, Panama had failed to provide for a timely determination of the domestic claims for remedies, and that, further, it had failed to provide adequately for due process.

“The petitioners point out that, although the construction of the dam is in its initial stages, the Ngöbe have already suffered the destruction of their environment, of their way of life, their culture, their health and of their personal integrity. Since January 2008, the petitioners say, in addition to the destruction of their forest, the Charco la Pava and Valle del Rey communities have experienced discomfort due to the noise from the construction site and to the detonation of explosives that, sometimes, take place after midnight. According to the petitioners, Ngöbe families have reported that due to the dust generated by the use of heavy machinery, several children have started to suffer from frequent and acute respiratory illnesses. They also indicate that the quality of the water in the river has deteriorated due to sedimentation in the creeks and rivers on which the Ngöbe rely for their daily chores.” Paragraph 16

“With regard to the alleged effects of construction activity at the Chan-75 site on the environment and on the physical health of members of the communities, the IACHR considers that they tend to characterize alleged violations of Article 5 of the American Convention.” Paragraph 48