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 Wetlands on 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 representing the 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.

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 was a 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.