CONSEJO INTERNACIONAL DE TRATADOS INDIOS

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Kuna Yala

Systems for prior-informed consent at the community-level

and their development and accommodation

under existing national legislation

Introduction

In Kuna Yala we have a model of free prior informed consent that is currently implemented in our daily activities and decision-making processes.  In this paper I will explain this model, its historical background as well as some current examples of how this model works within our communities.

The collective and traditional systems of rights in indigenous societies pre-date the nation-state. The Kuna people have developed practices according to their people’s needs, such practices having been established prior to the Convention on Biological Diversity.

Community level

Kuna people have a common philosophy and worldview that provides the overriding framework for our lives.  Our different systems of administration, decision-making processes and law simply reflect the desires and needs of each of the different communities.  Our holistic view encompasses values such as our land, territories, environment and resources and are inextricably linked both culturally and spiritually. The protection of our environment which is our mother earth is essential. Our relationship with the environment is one of children, we are the offspring of our land.  We have a common and shared experience in that we are born in the same nation, upon the same land and are joined by the unity of family relationships and common ancestors.

According to the Kuna sociologist Perez Archibold, our decision-making processes and self determination began centuries ago when “our ancestors understood the importance to build society based on Pab Igala”^[1].  There are four essential items according to Pab Igala”^[2]  These four items as interpreted by Archibold are as follows.

1.      In order to survive as a nation and to maintain our systems of property, we must defend, care and control our land, territory and resources.

2.      We must maintain the capacity to make decisions that deeply affect our people.  We must keep our systems of government, and our capacity to negotiate with foreign parties.

3.      To preserve our traditions, historical memories, language, and our ways of transmission.  By preserving and protecting these things we will be able to freely relate to the dominant society secure in the knowledge of who we are.  We must also be confident to critique the dominant society based on our own values and forms of knowledge.

4.      To strengthen our religion in order to face the unjust reality.  To use our religion as a vehicle to make our nation and historical memory more dynamic.

According to our elders, Kuna cultural, social and administrative organisation is based on the concepts ‘Nega’ and ‘Onmaked’.  Nega refers to the house, the base of the family and unity, Onmaked refers to the meeting of people. These two concepts also symbolise unity, participation and solidarity. The two concepts and its elements are the bases of our free prior informed consent process and implementation in our communities.

Kuna self determination and decision making processes use free prior and informed consent and are based on these elements. According to Hernandez and others[3] in their first national report on self determination self determination represents four values in practice which are call bulaled, kuamagaled, kuenadigualad and tuikualed.  These four values mean collectively, with one mind, brotherhood/fraternity, and unity.

In using these concepts Kuna people celebrate traditional Kuna meetings in every community - people come together in order to inform, analyze, discuss and adopt decisions on matters related to their communities such as projects, development, local issues and spiritual issues. For example, when a Kuna community needs to develop a new road they will inform, consult and make a decision with all the members of the community as to whether this project is feasible for the well-being of their members including the spiritual well being of their land.

The Kuna General Congress

From these concepts our elders built what we call “Onmaked Dummad” This means the Kuna General Congress. The Kuna General Congress is represented by three chiefs - they are similar to the president of a republic.  However, the difference is that our chiefs have to meet twice a year in the Kuna General Congress with the chiefs of every community to discuss agreements, resolutions, and the needs of Kuna Yala.

These three people are responsible for internal Kuna projects that are created by the Kuna General Congress.  They also answer to the official 250 or more delegates who attend the Kuna General Congress.

The Kuna General Congress is an administrative and political institution.  This body is also responsible for negotiations between the Kuna people and the Panamanian government.  The Kuna General Congress meets every six months.  However, if Kuna Yala has problems that need to be resolved, then a special meeting can be called.  Every community has to attend with their administrative chief and their five delegates, all of them can speak but only the chief can vote.

In the General Congress we decide many issues that relate to issues at the regional, national, and international level.  These decisions are made according to our laws, our norms, our customs, and our free prior informed consent.

There are many experiences in Kuna Yala of free prior informed consent and benefit sharing. For example, Kuna have independently dealt with their use of territorial water and land for the purpose of laying Trans-Atlantic fiber optic cable between South America, North America and Europe. This deal has brought economic benefit to two communities directly and, an income to the Kuna General Congress.

Lopez a Kuna lawyer states that Kuna people have developed a historical mechanism to create internal norms and a set of requirements to establish prior inform consent as a main element to deal with people who are not Kuna and who are interested in working with Kuna. This has ensured that the Panamanian government respects and consults with Kuna on matters relating to Kuna land[4].

As a result of these practices and customs, the Fundamental Law was created by a commission that was established by the Kuna General Congress.  This Commission was made up of Kuna professionals and delegates of communities.  The Fundamental Law of the Kuna Yala was adopted in the community of Urgandi 15-19 June 1995.

The Fundamental Law is related to political constitutions, organizations, administration, practices, and duties.  The Fundamental Law creates a special regime that is based on Kuna custom.

Article No 3, states:

The Kuna Yala Comarca constitutes a separate political division from the republic of Panama.  The organisation, administration and the functions of the Comarca will be under the special regime established in this law.

This article recognises the Comarca of Kuna Yala as a political division.  In this Comarca the jurisdiction of the Kuna Congress and their authorities is recognised. The Comarca of Kuna Yala is not an indigenous reservation, it is a political entity.

From this article the Comarca of Kuna Yala is under a special juridical regime, based on our traditional values. The Kuna General Congress constitutes an administrative political organism that deliberates and makes decisions at the bi-annual meetings. The decisions taken in the Kuna General Congress are official agreements and resolutions, and must be accepted by all of the communities and also, the governmental authorities that exist in the Comarca of Kuna Yala.

Existing national law

The Kuna fundamental law has not been recognized by the Panamanian constitution because the current government policies subject our fundamental law to national profit oriented interests.

Our fundamental law states that we are sovereign over all the land, including under the ground.  However the government does not recognise our rights because they say underground resources belong to the government.

In 1996 the Panamanian government approved a mining concession to the Canadian Company Western Keltic Mines Inc in our land to license, explore and exploit the Kuna Comarca. The concession was granted without any prior informed consent of the Kuna General Congress.  The Kuna General Congress revoked the permission granted by the Panamanian government. This decision was based on the policies of infiltration of our land, division amongst our people and the undermining and weakening of our political institutions.

Despite the fact that the Panamanian government does not recognize the fundamental law of Kuna People they acknowledged the Kuna General Congress when Kuna people revoked the permission to Western Keltic Mines Inc.  They agreed that Kuna people are under a special regime and Kuna norms and laws apply in Kuna Yala.

The Panamanian government has established laws to protect traditional knowledge. They also states that they recognize prior informed consent in legislation as per the CBD mandate. However, in the general environmental law they reproduced the text of Article 8(j) from the CBD but did not include the word “approval”.

Arias a Kuna expert stated in his case study that traditional knowledge “is not protected by laws, and although legislative initiatives exist to protect biological diversity and forests, and there are laws recognizing indigenous territories, they do not include knowledge”.  Further, he explained that article 97 of the General Environmental Law ignores a fundamental principle: that of the consent of those who possess the knowledge. This is left to the free will of those wishing to commercialize the knowledge of indigenous and local communities[5]. 

There has been a lack of full and effective participation of indigenous peoples regarding processes affecting indigenous communities such as policies, decrees and laws related to the environment.  Arias also found out that “the Laws promulgated so far have not considered the presence of indigenous peoples and therefore there are always major gaps and limitations to their implementation in indigenous communities.”[6]

Indigenous full and effective participation is mandatory. Indigenous peoples’ participation will assist conservation and the implementation of the CBD programme of work by creating effective policies in order to protect the environment.

Conclusion

Kuna culture and traditional practices of self-government and decision-making processes have supported and have served Kuna communities very well. The Kuna traditional system of free prior informed consent is a model of implementing self-determination.  It is based in Kuna culture, traditions, identity, the peoples’ self-esteem and ways of life.

The Panamanian government may not officially recognize in their constitution the Kuna fundamental law but it seems in practice that the Panamanian government recognizes Kuna traditional systems of self governance and they deal with Kuna Yala as a political entity. Their recognition has provided legitimacy to our traditional institutions and decision-making process.

The Kuna model of self governance and decision-making is a necessary condition for us to continue having appropriate sustainable development and provides a focused and direct response in the new era of globalization.

By using free prior informed consent on a daily basis as a mechanism to make decisions, Kuna people are seeking greater autonomy with minimal interference from the Panamanian government.  This is a slow process but one that we are committed to.  This right will also allow us to improve upon our own existing laws in order that our own communities are better governed and able to incorporate new ideas.