Progress or a delay tactic?

In March this year, several Embera and Wounaan communities fighting for their collective land titles staged a protest on the steps of MiAmbiente’s headquarters in Panama City demanding a decision. The protest resulted in an unexpected agreement with MiAmbiente to move the process forward by granting Visto Bueno resolutions to eight territories claimed by the communities.

However, the resolutions came with conditions, an important one being that an “inspection of the territories” must be carried out by MiAmbiente, Panama’s National Authority of Land Administration (ANATI), the Tommy Guardia Geographical Institute (Panama’s national cartographic agency) and the individual communities. No timetable was given for the inspections, which must occur before the title applications can progress any further.

The eight territories, home to more than 5,000 indigenous people, are the Wounaan territories of Maje Chiman, Rio Hondo and Platanares, Aruza, and Cemaco Taimati; and the Embera territories of Bajo Lepe, Piji Basal, Mercadeo, and Maje Embera Drua (see map). They overlap, abut, or in some cases lie completely within nationally protected areas, including Darién National Park and the RAMSAR-listed Panama Bay Wetlandson the country’s Pacific coast.

During the Wounaan-Embera protests in March, MiAmbiente’s director, Emilio Sempris, said in a televised interview that a critical part of the titling process was the verification of an application’s maps and supporting documentation due to the territories’ overlap with protected areas.

These problematic overlaps, Sempris said, arose from historical mapping issues. As an example he pointed to Darién National Park, which could not be properly delineated on the ground in the 1980s and had to be completed at a desk. “This process of preparation of the map resulted in a discrepancy of between 30,000 and 80,000 hectares [74,000 to 198,000 acres],” he said in the interview.

MiAmbiente’s granting of the eight conditional Visto Bueno resolutions provoked both feelings of progress and criticism in many indigenous leaders.

“[MiAmbiente] said they wanted to have a dialogue with the communities, that there was a willingness to grant the titles, that they were going to issue a favorable resolution,” said Elivardo Membache, the cacique, or elected leader, of the communities in the four Embera territories near Darién National Park that received conditional Vistos Buenos. “In the end, it was just to distract the communities.”

Frustrated, people in four of the territories —Bajo Lepe, Piji Basal, Mercadeo and Maje Chiman — decided to take their case to Washington, D.C. According to Hector Huerta Gonzales, a lawyer with the Corporation of Indigenous Lawyers of Panama, the firm representingthe four territories, the entire Panamanian titling process should only have taken 12 months.

“This is to delay, delay the process of recognition, because the government does not want to recognise the collective rights of the indigenous people,” Huerta said of the conditioned Vistos Buenos.

Huerta said MiAmbiente already had all the documentation required, including accurate maps. By further delaying the process, he said, the current government is probably hoping that it will avoid having to make a decision altogether as the country is already gearing up for national elections next year.

Panama, with red square indication the location of the detailed map below. Image courtesy of Google Maps.
Panama, with red square indicating the location of the detailed map below. Image courtesy of Google Maps.
Map shows the eight territories that Wounaan and Embera indigenous communities are seeking title to in eastern Panama. Image courtesy of the Rainforest Foundation.
Map shows the eight territories that Wounaan and Embera indigenous communities are seeking title to in eastern Panama. Image courtesy of the Rainforest Foundation.

Indigenous youth from Wounaan-Embera Comarca, a semi-autonomous territory that is distinct from the eight territories the Wounaan and Embera are trying to gain title to in this story, describe community efforts to protect forests. Video by If Not Us Then Who?

The Wounaan and Embera communities’ experience fits a global pattern. Internationally, indigenous peoples face lengthy processes gaining legal title to their ancestral lands; in stark contrast, companies are able to formalize their rights to land with relative speed, according to a new report by the U.S.-based think tank World Resources Institute.

Huerta and his team plan to present the case to the Inter-American Commission on Human Rights in Washington within a month. He said taking the case internationally wasa risky strategy due to the Commission’s backlog of cases to consider.“Taking the case to the Commission on Human Rights is a long road, but it also permits us to pressure the Panamanian state and its commitment to Indigenous rights,” Huerta said.

This is not the first time a Panamanian case like this has been raised internationally. In 2014, Embera and Kuna communities won a land rights case they’d taken to the Costa Rica-based Inter-American Court of Human Rights, and had their territories titled as a result. The court concluded that the Panamanian state had been responsible for violating articles within the American Convention on Human Rights, including the failure to provide the communities with “effective access to a collective property title over their territories” despite having a law specifically enacted to enable this: Law 72.

Law 72 was passed in 2008 and its mechanism legislated in 2010. It outlines a process to recognize and protect indigenous communities left outside of Panama’s five semi-autonomous indigenous territories known as comarcas, which were gradually established throughout the country between the late 1930s and 2000. The comarcas are home to just under half of Panama’s indigenous population of 417,559, according to the last official census in 2010. (Government projections cited by local media in 2016 stated that the country’s total indigenous population by then exceeded half a million.)

However, since Law 72’s enactment a decade ago, only five territories have had their traditional lands legally recognized by ANATI. Twenty-four others await resolution.

MiAmbiente did not respond to repeated emails and calls by Mongabay over the past two months seeking answers to questions relating to this issue. ANATI did not respond to an email inquiry, its central listed phone numbers appeared to be out of order, and spokespeople for its regional offices declined to comment.

Territorial incursions

For the communities living in the eight territories, which are predominantly located within the country’s rich rainforests, obtaining collective titles for the zones they’ve demarcated as their traditional lands would allow them to directly manage, develop and conserve the areas. Critically, it would also give the communities the legal authority to protect the forests from non-indigenous invaders, known locally as colonos.For years, loggers, ranchers, miners and drug traffickers have clashed, often violently, with the indigenous population.

“[MiAmbiente] always put conditions to delay any action despite our urgent need for land titles right now,” Cacique Membache said, citing a recent escalation of illegal logging both inside the Embera territories and within Darién National Park.

The conflict between the communities and the colonos, who often foray into the territories despite some of these being physically marked by cleared paths through thick forest, poses a constant threat to both the communities and their environments.

In February 2012, tensions between loggers and the Wounaan community of Platanares, which received a conditional Visto Buenothis past March, resulted in violence. The Wounaan’s leader, Arquilio Opúa, and one logger died.

These conflicts are becoming more frequent, particularly in and around conservation areas that are supposed to be protected by the state, according to Cameron Ellis, senior geographer with the Rainforest Foundation, a New York-based NGO working closely with several Embera and Wounaan communities in their land title bids. He said this was true for all eight communities that received the conditional Visto Bueno resolutions in March.

“At this point every single one of those communities is experiencing threats to the integrity of their territory. And that wasn’t true four years ago,” he said.

An uncontrolled agricultural burn near the indigenous community of Mercadeo. Image courtesy of the Rainforest Foundation.
An uncontrolled agricultural burn near the indigenous community of Mercadeo. Image courtesy of the Rainforest Foundation.

To document and combat the illegal activity, the Rainforest Foundation has been helping the communities train monitoring teams.

In Platanares, Ellis said, “You are seeing a community that is, honestly, still shell shocked from the violence of the conflict between community members and the loggers.”

The ongoing incursions are a topic of concern for experts within Panama and international bodies alike. A 2017 report by the World Bank focused on the development of plans to support Panama’s indigenous people underscored that the ineffective application of Law 72 was contributing to negative impacts on indigenous lands. These lands, the report stated, “are not respected by diverse non-indigenous actors and there is a process of invasion of the territories.” It also highlighted that state-licensed extractive companies had a presence within the territories without the consent of traditional authorities and communities.

The report concludes that the “worrisome levels of conflict, violence and aggression” in these lands occur “without there being any response from the State.”

Conservation as cover?

Both indigenous leaders and experts on the subject of Panamanian land rights have criticized the government not just because of the recent conditional Visto Bueno resolutions, but also for invoking conservation to justify the stalled process.

According to Osvaldo Jordan, an expert in environmental conflict and governance in Panama, successive governments in the country have continued to block or stall land titling because they are unwilling to lose further control of national land by ceding it to indigenous communities. According to Law 72, MiAmbiente is required to coordinate with indigenous authorities to manage a territory sustainably if it is found to overlap a protected area.

“This is not an issue made by the ministry of environment — we have to be clear on this,” Jordan said. “This is not a conflict between conservation and indigenous land rights. It is a conflict between the state and the indigenous community, where the state is not concerned about recognizing indigenous rights, because they see it as a loss of power in certain decisions for the future.”

If the state were truly invested in protecting the forests and conserving the land, he added, then it would turn the territories over to the indigenous people without hesitation. They are the ones who are actually looking after the forests because the government does not have the resources to do so, he said, articulating a view shared by the communities at the frontline of illegal logging.

According to the Rainforest Foundation, Panama has approximately 300 park rangers for all of its 121 protected areas.

“Protected areas have served as a comfortable justification [for the government], but they have grabbed onto that excuse to negate the territorial rights,” Jordan said.

Dawn on the Tuira River, near the Embera village of Sobiaquiru Panama, a few miles from the border with Colombia. Image courtesy of the Rainforest Foundation.
Dawn on the Tuira River, near the Embera village of Sobiaquiru Panama, a few miles from the border with Colombia. Image courtesy of the Rainforest Foundation.

In fact, indigenous people around the world have been adversely affected by nationally and internationally created conservation areas for generations. According to a2016 reportby the U.N.’s Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, the expansion of protected areas around the world in recent decades has contributed to the violation of indigenous peoples’ human rights, “notably by the expropriation of land, forced displacement, denial of self-governance, lack of access to livelihoods and loss of culture and spiritual sites, non-recognition of their own authorities and denial of access to justice and reparation, including restitution and compensation.”

Protected areas have often been created without local communities’ free, prior and informed consent. In some cases, indigenous people entering their traditional lands have faced arrest or violence by park rangers. The irony of such policies, as pointed out in the Special Rapporteur’s report, is that indigenous people have been repeatedly shown to conserve the environment better than anyone else.

This point is not lost on the Panamanian communities facing a constant threat from all sides while at the same time being limited in their movement and use of the land by newly created conservation zones.

“Believe me when I say that if the indigenous people weren’t there, the land would have already landed in the hands of colonos, who would have been indiscriminately logging the zones a long time ago,” said Membache, the Embera cacique.

Communities still hope for approval this year

If the government has an actual willingness [to grant the lands] compared to previous years, then we could have these territorial titles in three to four months,” said Diograciow Puchicama, the cacique of the Wounaan Congress.

“But knowing our country, it could take a lot longer,” he added.

In mid-May, Puchicama took part in the first of the eight land inspections, in the territory of Maje Chiman, as outlined in the Vistos Buenos granted in March. This study, which is to be followed by one of the nearby territory of Rio Hondo and Platanares, focused on the Panama Bay Wetlands that the two territories overlap.

The progress, although slow and full of obstacles, is a welcome change, Puchicama said. Even so, the Wounaan of Maje Chiman will still take their concerns to the Inter-American Commission.

“Sometimes if you don’t do this [appeal to the international community], the state goes to sleep on it, they leave the documents just sitting there,” he said. “Once they see that we are taking the case somewhere else, they start to move on it.”

By continuing the process of these conditional Visto Bueno resolutions, he said, the Wounaan leadership is aiming to approach MiAmbiente with a shared management plan for the protected wetlands overlapping their territories. This, he said, will allow the communities to utilize the rich food resources within the wetland.

From Puchicama’s perspective, the goal is always to conserve the community’s territory and environment, “because that’s our lives, our livelihood, we are nothing without it.”

“We will implement our own laws on environmental management, and from our own point of view,” Puchicama said, referring community-driven land zoning regulations that specify what can and cannot be done in certain areas of the territory. The indigenous communities are developing these internal regulations, which include conservation zones that often complement areas already protected by MiAmbiente, with the support of groups like the Rainforest Foundation.

As of mid-July, MiAmbiente had passed along the results of the Maje Chiman land inspection study to ANATI. But the study of Rio Hondo and Platanares, as well as the other six remaining territories, have yet to begin.

A young Embera woman from Bajo Lepe. Image courtesy of the Rainforest Foundation.
A young Embera woman from Bajo Lepe. Image courtesy of the Rainforest Foundation.

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Article published by Rebecca Kessler
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