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Photo: Niek Verlaan / Pixabay

Panamanian court declares unconstitutional law 406 enabling mining exploitation in protected areas

30 November, 2023 | Ricardo Changala

On November 28, the plenary of the Panamanian Supreme Court of Justice ruled Law 406 unconstitutional in its entirety after a continuous session lasting over 60 hours, starting on Friday, November 24, 2023.

The law facilitated the implementation of a previous agreement between the State and Empresa Minera Panamá, a subsidiary of the Canadian company First Quantum Minerals, for the exploitation of what would have been the largest copper mine in Central America.

During the session, various claims of unconstitutionality against the regulation were analyzed. The opinions of the National Procurators, the Administration, and dozens of arguments received by the Supreme Court were also assessed. Eventually, the Court concluded that the law is “expelled from the legal regulations of the country”.

The country awaited the resolution in suspense after several weeks of social demands, demonstrations, and even fatalities in that context. Hence, the judicial decision, communicated on the day commemorating Spain’s independence in 1821, was joyously celebrated by the population.

The public mobilization opposed the now-defunct law for political reasons, highlighting corrupt practices and other allegations. However, the lawsuit primarily centered on defending Panamanian nature and biodiversity.

Even notable figures like activist Greta Thunberg and actor Leonardo Di Caprio highlighted that mining activity in the protected area would have a devastating impact on ecosystems, animal and plant species, as well as on people. The proposed mining company aimed to operate in the heart of the largest biological corridor in Mesoamerica, crucial for numerous migratory species, vital for the livelihood and culture of indigenous communities, and home to native fauna.

The mining project was intended for the municipality of Donoso in Colón province, where indigenous, Afro-descendant, and peasant communities reside amidst rich and diverse nature. Its forests, rivers, seas, and coasts host coral systems, turtle nesting beaches, endangered animals like the jaguar, and breathtaking flora.

It’s noteworthy that, since 2009, the State of Panama had regulated the protection of the area and prohibited its use for purposes that could harm it.

By decree on March 2 of that year, the National Environmental Authority approved Resolution AG-0139-2009, declaring the Donoso Protected Area.

The decree emphasizes that:

“The biodiversity of the Donoso area, in the province of Colón, is of paramount importance for Panama’s natural heritage, maintaining a crucial portion of viable connecting habitat of undeveloped lands. This sustains the biological corridor’s continuity in this region… The Donoso forests provide refuge to more than 650 species of flora and fauna, most of which are threatened, rare, endemic regionally, bi-nationally, and nationally. These species have restricted distribution, vulnerable and endangered populations…”

The Resolution comprehensively mentions activities detrimental to the area, such as artisanal and industrial open-pit mining and an increase in sand extraction permits near the coasts, impacting the region’s tourism potential that could directly benefit the locals.

Thus, the Resolution sets the general objective for the Donoso Protected Area:

“…to maintain ecological processes inherent in natural systems and conserve their biological, genetic, and cultural diversity, along with their resources for sustainable use.”

Aligned with this objective, the Resolution prohibits various activities within the protected area that are incompatible with specified objectives.

The Resolution was preceded by numerous environmental studies and the design of plans like the Master Plan for Donoso and Santa Fe, prepared by the Forest Stewardship Council in 2006. These were cited in the regulatory text, all of which strongly support the decision made in 2009 and question the now-eliminated Law 406 that appeared to disregard this reality.

Undoubtedly, a clear victory for the populace in favor of nature preservation, setting the course for current and future authorities of Panama, in a country soon to undergo a new electoral process.