Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Indigenous and Tribal Populations Convention, 1957 (No. 107) - Panama (Ratification: 1971)

The Committee notes the observations of the National Confederation of United Independent Unions (CONUSI), received on 30 August 2021, and the Government’s reply to them.

Prospects for the ratification of the most up-to-date instrument: the Indigenous and Tribal Peoples Convention, 1989 (No. 169). In its previous comments, the Committee noted that the Government was analysing the possibility of ratifying Convention No. 169. The Committee notes the Government’s indication in its report that: (1) it has always been very careful when taking decisions on the ratification of ILO instruments and that, before proceeding to the ratification of a Convention, it is first necessary to adopt the necessary measures to harmonize national law and practice with its provisions; (2) the existence of significant incompatibilities has been noted between Convention No. 169, the Constitutional provisions and the national legislation and accordingly the Government has considered it prudent for now not to ratify the Convention; and (3) the Government evaluated the possibility of ratifying Convention No. 169 at the appropriate time, but in view of the above, the scope and responsibilities deriving from the Convention, was cautious in taking a definitive decision in this respect. The Committee notes the indication by CONUSI that the subject of the ratification of Convention No. 169 cannot be put off any longer and that the Tripartite Social Dialogue Commission established in 2012 had accepted the decision to address the approval of the Convention. On this point, the Government indicates that, at that time, the Ministry of Labour and Labour Development did not agree with the ratification of Convention No. 169, tried to deal with the situation in a positive manner while expressing its reservations in relation to the ratification of that Convention for the above-mentioned reasons. While noting all the above information, the Committee trusts that, giving effect to the decision of the ILO Governing Body (328th Session, October-November 2016, GB.328/LILS/2/1), the Government will continue to consider the possibility of ratifying Convention No. 169, considered by the Governing Body to be the most up-to-date instrument on the subject. The Committee recalls the importance of tripartite dialogue as well as dialogue with indigenous peoples on this subject. Finally, the Committee recalls that the Government can have recourse to ILO technical assistance, including with a view to collaborating in seeking measures that could be adopted to overcome the incompatibilities referred to above.

Articles 2(2)(b) and 6 of the Convention. Improvement of living conditions. In its previous comments, the Committee noted that the highest percentage of people living in multidimensional poverty is in indigenous comarcas and encouraged the Government to continue taking measures to improve the living conditions of the peoples covered by the Convention. The Committee notes the extensive statistical data provided by the Government on the socio-economic situation of indigenous peoples. According to the Report on Poverty and Indigence by Income (2019), 55.8 per cent of persons in the Guna Yala comarca and 66.9 per cent of those in the Ngäbe Buglé comarca were living in extreme poverty in 2019. According to the gender-focussed Social Progress Index for Panama (2019), the percentage of indigenous persons aged 18 years and over who had not completed secondary education or had not completed any educational level in 2019 was 80.77 per cent. The Committee notes the Government’s indication that the multidimensional poverty suffered by indigenous peoples has been considered in the Government’s Strategic Plan for the period 2019-24 and that, on this basis, priority measures and action have been identified, including: the strengthening of the Department of Indigenous Affairs; consultation and agreement on plans at the level of regions and comarcas with a view to improving the living and health conditions of indigenous peoples; programmes of micro-credit and the promotion of sustainable agriculture and agricultural tourism; the improvement of communication routes in comarcas and literacy programmes. The Committee also notes the information on the collaboration between the Government and the private sector to promote entrepreneurship in indigenous communities, for example through the Colmena Plan which, through investment in sustainable projects, is seeking to reduce the conditions of social and economic vulnerability of the 300 poorest districts in the country. The Committee welcomes the availability of updated statistics on the situation of indigenous peoples, which are an essential tool for the effective definition and orientation of policies for indigenous peoples, and encourages the Government to continue its efforts to improve the socio-economic conditions of people living in indigenous comarcas. In this regard, the Committee requests the Government to provide information on the progress made in the various actions envisaged to improve the socio-economic situation of persons living in indigenous comarcas, and in particular the Ngäbe Buglé comarca.

Article 5. Environmental consultations. In its previous comments, the Committee noted the General Act on the Environment (Act No. 41) of 1998, which provides that studies for the exploration, exploitation and use of the natural resources that are authorized in lands occupied by indigenous comarcas or peoples shall not be detrimental to the cultural, social and economic integrity and spiritual values of these peoples (section 95); and that where projects are developed in the territories of indigenous communities, consultation processes shall be held with a view to reaching agreements with the representatives of such communities and obtaining compensatory benefits (section 98). It also noted Act No. 37 of 2016, which establishes the requirement to consult indigenous peoples on measures which may affect their collective rights, including development projects. In this regard, the Committee requested the Government to provide information on the manner in which such consultations are held, and on the manner in which indigenous peoples participate in the preparation of environmental impact studies for projects that may affect their rights.

The Committee notes that the Government refers to Executive Decree No. 123 of 14 August 2009 which, in section 12, requires promotors of activities, works and/or projects to guarantee the participation of civil society, including indigenous peoples, in the process of the preparation and evaluation of the environmental impact study for their project, work or activity. The Government also refers to Act No. 11 of March 2012 establishing a special system for the protection of mineral, hydrological and environmental resources in the Ngäbe Buglé comarca (the largest comarca in the territory), section 6 of which provides that hydro-electric projects that are to be located wholly or partially within that territory shall obtain the approval of the respective congresses (general, regional or local) and shall then be submitted to a referendum in the respective comarca, region or local area. The Government specifies that the Ministry of the Environment makes it compulsory for promotors of activities, works or projects for which it is required to submit the environmental impact study which are located in indigenous lands, to present the authorization issued by the highest traditional authority in that territory. The Committee also notes the Government’s indication that consultations have been held with the traditional authorities of the 12 indigenous peoples of Panama which have resulted in various agreed decisions, including a decision in support of the strengthening of the legal framework for the regulation of Act No. 37 of 2016. The Committee notes the various legislative provisions which envisage the participation of indigenous peoples in relation to projects that may affect their collective rights and requests the Government to continue providing information on the application in practice of these provisions, and particularly section 12 of Executive Decree No. 123 of 14 August 2009 and section 6 of Act No. 11 of March 2012. The Committee also requests the Government to continue providing examples of the consultations held with indigenous peoples within the framework of Act No. 37 of 2016 and on the agreements reached, as well as information on progress in issuing regulations under Act No. 37 of 2016.

Article 11. Disputes concerning lands. For several years, the Committee has been noting the allegations of intrusions into the collective lands of the Kuna de Madungandí and Emberá de Alto Bayano peoples, as well as the action taken by the Government to bring together the parties involved in the land disputes with a view to finding a solution, and it has requested the Government to provide information on the outcome of these actions. The Committee notes that the Department of Indigenous Affairs has been following up the process of resolving land disputes between rural workers and members of the Kuna de Madungandí comarca. It also notes the creation of a high-level commission which decided to undertake inspections in the areas of Tortí Medio and Tortí Abajo. The findings of the inspection show that there are 31 informal dwellings in the Kuna collective territory which, according to the Government, will be removed. With regard to the territory of the Emberá de Alto Bayano community, CONUSI indicates that the process of the delivery of title to the collective lands of Alto Bayano to the Piriatí Emberá community is still pending. In this regard, the Committee notes the Government’s indication that there is a property in the name of an individual in the Piriatí Emberá community, which has to be annulled in order to proceed with the public registration of the collective ownership to the lands of the Alto Bayano. The Committee takes due note that the Government has held meetings with the National Lands Authority and the National Geographical Institute with a view to developing a methodology for the use of technological means to verify the borders of comarcas and indigenous lands that are subject to dispute as a means of resolving disputes concerning lands. The Committee encourages the Government to continue its efforts to find a solution without delay to the disputes concerning lands involving the Kuna de Madungandí and Emberá de Alto Bayano peoples and requests it to provide information on any progress achieved in this regard.

Article 12. Removal of populations. Climate change. In its previous comment, the Committee noted that the Government was envisaging the sustainable removal of 1,500 persons belonging to the Guna Yala comarca in the San Blas archipelago, who are faced with rising sea levels as a result of climate change. The Committee notes the Government’s indication that, in the context of its third national communication of 2018 under the United Nations Framework Convention on Climate Change, a climate vulnerability study was undertaken in the Guna Yala comarca, which raised the issue of the relocation of those populations as an adaptation measure. The Committee notes that, according to the CONUSI, there is no information on the implementation of the sustainable removals, nor on the measures adopted to ensure that the communities to be removed benefit from lands that are at least equal to those that they previously occupied. The Committee also notes Executive Decree No. 125 of 2 March 2021, which establishes an Indigenous Peoples Environment Office. It notes with interest that the objective of this Office is to advise on compliance with the plans and projects established in environmental policies, in coordination with the Department of Indigenous Affairs and the traditional authorities of indigenous peoples, and that it has facilities to provide advice on the measures to be taken so that indigenous peoples who have to be removed in exceptional circumstances can obtain lands of equal or better quality. The Committee, taking into account the situation of vulnerability of the inhabitants of the Guna Yala comarca, whose lands are threatened by the imminent rise in sea levels, encourages the Government to take the appropriate measures to protect the physical safety of these inhabitants. In this regard, the Committee requests the Government to provide information on the measures adopted with a view to ensuring that the communities that have to be removed can be relocated on lands of quality at least equal to those that they previously occupied and which enable them to provide for their needs, with an indication of the number of members of the Guna Yala comarca who have been removed. Finally, the Committee requests the Government to provide information on the activities undertaken by the Indigenous Peoples Environment Office and the manner in which coordination with the Department of Indigenous Affairs and with the traditional authorities of indigenous peoples is ensured in this regard.

Article 15. Recruitment and conditions of employment. In its previous comments, the Committee encouraged the Government to take measures to promote decent work for the peoples covered by the Convention, and particularly indigenous women. In this regard, the Committee notes the detailed information on the various measures adopted by the Ministry of Labour and Employment Development, together with the National Institute for Women and the Vocational Training and Human Skills Development Institute to promote the labour market integration and entrepreneurship of indigenous women of the Ngäbe Buglé and Emberá Wounaan communities. The Committee also notes the reference by the CONUSI to the second report on the labour situation in Panama in 2019, according to which the hourly wages of indigenous dependent workers in Panama are 47 per cent lower than those of non-indigenous dependent workers. The CONUSI adds that, according to the labour market survey (2019), the informality and precarious work indices in 2019 were higher than 80 per cent in the Kuna Yala, Emberá and Ngäbe Buglé comarcas. The Committee welcomes the measures adopted by the Government to promote the labour market integration of indigenous women and invites it to continue providing information on this subject, as well as on the impact of the measures. The Committee also requests the Government to provide information on the measures adopted with a view to resolving the wage gap between indigenous workers and other workers, and to preventing any type of discrimination in employment. Finally, the Committee requests the Government to provide updated statistics on the labour situation of indigenous peoples, where possible disaggregated by gender.

Article 20. Health. The Committee notes that the National Council for the Comprehensive Development of Indigenous Peoples (CNDIPI) adopted Decision No. 1 of 5 June 2020 to include the approval of the Plan of Action for the Prevention and Control of COVID-19 in indigenous comarcas and collective lands among the activities implemented within the framework of the PDIPIP. In accordance with this Decision, traditional medicine has to be recognized when purchasing medical equipment and supplies to prevent and control COVID-19. It also provides that the Ministry of Health shall create an office within its regional services to cover indigenous territories and coordinate with the Department of Indigenous Affairs and the traditional authorities to monitor levels of infection in indigenous territories. The Committee welcomes the adoption of measures to prevent and control the spread of COVID-19 which recognize the value of indigenous traditional medicine and it encourages the Government to provide information on the manner in which the Ministry of Health, the Department of Indigenous Affairs and the traditional authorities undertake coordinated action to strengthen the health systems in indigenous communities.

Articles 21 to 26. Education. In its previous comments, the Committee welcomed the measures taken by the Government to promote intercultural bilingual education. The Committee notes the Government’s indication that, through the National Directorate for Intercultural Bilingual Education, educational programmes and materials have been developed focussing on indigenous identity and translated into the languages of the communities. Teachers have also been trained who are being sent to work in indigenous communities. The Committee also notes the measures taken to prevent and eradicate child labour, which include the provision of education grants and food services. In 2019 and 2020, there were 793 beneficiaries of these measures in the Kuna Yala, Emberá and Ngäbe Buglé indigenous comarcas. The Committee encourages the Government to continue its efforts with a view to ensuring that indigenous peoples have the opportunity to acquire education on an equal footing with the rest of society. In this regard, the Committee requests the Government to provide updated data on the school enrolment and completion rates of boys, girls and young persons belonging to indigenous comarcas.