Comarca Naso Tjer Di

Nature of the Case

Supreme Court case upholding the State’s obligation to provide the Naso people with collective rights to land in the form of a comarca.

Summary

The Naso Tjer Di people are considered one of the seven indigenous peoples that have traditionally inhabited Panamá. There is a record of their occupation in the Province of Bocas del Toro since before the 19th century.

In 2018, Panamá’s Legislative Assembly sent Bill No. 656 to the President to sign. Bill No. 656 is a Bill to create the Naso region and formalize ownership of land, in the form of a comarca (traditional region or local administrative division of land ), to the Naso people. Instead of signing the Bill, the President at the time stated that it was unenforceable because it was unconstitutional. In Panamá, Articles 171 of the Constitution and 2555-56 of the Judicial Code allow the Executive Branch to request that the Court rule on the Constitutionality of a Bill that has yet to receive “legal life.” This case was brought pursuant to that mechanism. The President argued that the land to be given to the Naso people was protected land and that existing State regulations do not recognize collective property rights.

The Court emphasized that Article 127 of the Constitution specifically delineates the State’s obligation to provide land to Indigenous Peoples through common ownership. The Article specifically states that private appropriation within these lands is prohibited. The Court also cites International Labor Organization’s Convention 107 on indigenous and tribal populations, which Panamá adopted. Article 11 and 13 of the Convention pertain to granting indigenous property rights. Additionally, the Court states that the country’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples means that the country must abide by the Declaration’s Articles. While collective property rights do not necessarily correspond to traditional conceptions of property, the Court has already established that they deserve equal protection pursuant to Article 21 of the American Convention on Human Rights. In light of these laws, the Court says that Indigenous Peoples in Panamá have the right to lands, territories and resources that they have traditionally and ancestrally possessed, occupied, used, or acquired. As the country provides for transfer of certain properties to Indigenous Peoples as a right protected by the Constitution, it would be meaningless if collective property was subject to the same legal requirements as private property. The Court also reminds the parties that Panamá has already upheld these rights through multiple comarcas to indigenous communities.

On the topic of the protected nature of the land in question, the Court discusses the many ways that indigenous communities are important protectors of the land and the environment, and thus their inhabitance of the land in question will not undermine its protected status. The indigenous way of life is conducive to conservation and protection of natural resources. Even Panamá’s own legislature has recognized this, as seen in Article 97 of Law 41 of 1998, “General Environment in the Republic.”

Indigenous Comarcas are part of the “historical heritage” of the country, and Bill No. 656 was ruled enforceable.

Enforcement of the Decision and Outcomes

According to the Center for International Environmental Law, the ruling constitutionally required the President to ratify Bill No. 656, which happened on December 4, 2020. The North American Congress on Latin America says that “the next step is for the Naso General Council to meet and begin establishing new internal regulations that will govern the comarca.”

Significance of the Case

This case signifies the culmination of a struggle the Naso people have been engaged in for over 50 years. In the 1980s, the Panamá Government created, without Naso permission, La Amistad International Park and the Palo Seco Protected Forest as protected areas. Both overlap with the Naso people’s land. Until this ruling, the Naso were one of two indigenous groups in Panamá without any formal recognition of their ownership to the land.

The Court in this case both confirmed Naso ownership of the land in question and solidified the importance of international laws in Panamá’s jurisprudence, as well as the ability to give collective title that incorporates protected lands to Indigenous Peoples.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.