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Friend of the Court Brief filed in Panamanian Case challenging CDM project Barro Blanco (Newsletter #4)

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The infamous CDM Barro Blanco hydro power project, registered in 2011, continues to cause unrest amongst indigenous communities in Panama. In August, civil society organizations filed an amicus or “friend of the court” brief in an ongoing domestic lawsuit in Panamanian court. Also UN Special Rapporteur on the Rights of Indigenous Peoples, who had visited the project, concluded that the government should have ensured adequate consultation. Despite the negative impacts on the Ngöbe communities, the CDM remains without remedies for affected people to appeal against CDM projects that violate relevant national and international law, including international human rights law.

Barro Blanco is a 29 MW hydroelectric CDM project currently under construction on the river Tabasara, Panama. The project is financed by European Banks from Germany (DEG) and the Netherlands (FMO) and was registered as a CDM project in 2011 despite concerns about the accuracy of the Environmental Impact Assessment (EIA) and an insufficient local stakeholder consultation. The water reservoir of the dam is expected to flood land belonging tothe Comarca of the Ngöbe-Buglé. The Comarca is a semi-autonomous reservation owned and administered by Panama’s indigenous Ngöbe and Buglé people. Although Barro Blanco lies technically outside the legal boundaries of the Comarca, more than half a dozen townships along the riverbanks in Ngöbe-Buglé territory will be flooded and the livelihoods of some 5000 Ngöbe farmers who rely on the river for potable water, agriculture and fishing will be irrevocably compromised.

Two years on, the project is still at the centre of unrest for the indigenous Ngöbe-Buglé. Ngöbe-Buglé, the largest indigenous group of Panama, demand protection of their rights and resources through a law banning mining and hydroelectric projects affecting their territories, which are legally recognized by the Government of Panama as collective property of the Ngöbe-Buglé indigenous people. They demand that all concessions that were granted without their approval, including for the contentious Barro Blanco hydro-electric project, be cancelled.

Indigenous people have special protections under international law. In the case of Barro Blanco, Panama violated international law by ignoring the Ngöbe peoples’ rights to consultation and to free, prior and informed consent, which require states to ensure that indigenous peoples are actively engaged in, and take ownership of, decisions that affect their lives and livelihoods.”

Senior attorney Alyssa Johl from the Center for International Environmental Law (CIEL) who co-filed the lawsuit.

In July 2013, U.N. Special Rapporteur on the Rights of Indigenous Peoples James Anaya visited the indigenous communities in Panama and concluded that the government should have ensured adequate consultation with the Ngäbe people before authorizing the CDM project. In August 2013, a number of civil society organizations filed an amicus brief, in Panama’s Supreme Court of Justice in support of a domestic lawsuit filed on behalf of Ngobe community members, challenging the environmental review of the Barro Blanco hydroelectric dam (see PR here). The brief argues that the Panamanian government violated international law by approving the project without adequately consulting or obtaining the free, prior and informed consent of the affected Ngӓbe-Buglé indigenous peoples, and without adequately reviewing the environmental impacts to their lands.

Meanwhile the CDM Executive Board has remained of the opinion that it has no mandate to address concerns about human rights violations. The Barro Blanco project shows clearly that local stakeholder consultation rules in the CDM are not sufficient to ensure the protection of human rights. At the upcoming climate change conference in Warsaw, Parties must establish a CDM grievance mechanism that offers remedies for affected people to appeal against CDM projects if they violate requirements of applicable international conventions, such as the convention for human rights.

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