Colón Colón Panama
The Supreme Court of Justice of Panama, in a ruling of November 27, 2023, declared Article 1 of Law 406 of October 20, 2023, unconstitutional.
This law approved the mining concession contract between the Panamanian State and the company Minera Panamá, SA, and granted exclusive rights for the exploration, exploitation and extraction of gold, copper and other minerals in the area of "Cerro Petaquilla", located in the district of Donoso, in the province of Colón, Panama.
The lawsuit alleging unconstitutionality was filed by a Panamanian lawyer, various organizations and sectors of civil society (environmentalists, unions, students and indigenous communities), who promoted other actions and actively protested against the mining concession.
The central arguments pointed to the violation of articles 257, 259 and 266 of the Political Constitution of Panama and that the contract violated constitutional principles - issues of sovereignty and environmental rights - also warning about the ecological impact of mining in the Mesoamerican Biological Corridor.
During the legal proceedings, positions were observed regarding the violation and threat to social interests, to constitutional and international regulations of a social and environmental nature, but also regarding respect for human rights and compliance with international agreements such as the Escazú Agreement.
Ultimately, the Supreme Court's decision underscores the State's duty to guarantee a healthy environment and adhere to international environmental standards, concluding that private interests derived from private investments should not override the supreme values enshrined in the Panamanian Constitution.
Consequently, the international policy of the Panamanian State has supported this environmental protection through the Stockholm Declaration, which establishes that "the Earth's natural resources, including air, water, land, flora and fauna, and especially representative samples of these natural ecosystems, must be preserved for the benefit of present and future generations through careful planning or management, as appropriate" (Principle 1), considering that "the Earth's non-renewable resources must be used in a manner that avoids jeopardizing their future depletion and ensures that all humanity shares in the benefits of such use" (Principle 5), recognizing that "All countries, large or small, must deal in a spirit of cooperation and on an equal footing with international issues relating to the protection and improvement of the environment. It is essential to cooperate through multilateral or bilateral agreements or by other appropriate means to effectively control, avoid, reduce and eliminate the harmful effects that activities in any sphere may have on the environment, with due regard for the sovereignty and interests of all States" (Principle 6). 24).
Therefore, the Supreme Court notes that one of the normative incompatibilities or contradictions identified in this case consisted of the prohibition imposed by the Political Constitution on the National Assembly regarding the enactment of laws that contradict its spirit. In accordance with paragraph 1 of Article 163, this prohibition also distorts the concept of retroactivity of laws contemplated in Article 46 of the Constitution, which was not observed when the Legal Contract, the subject of the unconstitutionality action under judicial review by the Court, was approved.
The Court also reinforced the guidance of the Inter-American Commission on Climate Change, which calls on States to re-examine climate-affecting policies in a transparent and participatory manner. Law No. 406 of 2023 does not specify the environmental management instruments that would allow effective access to information on environmental adaptation programs, mitigation measures, and effective compensation for affected populations. This is contrary to Principle 13 of the United Nations Guiding Principles on Business and Human Rights, which stipulates that "The responsibility to respect human rights requires that businesses: "Seek to prevent or mitigate adverse human rights impacts directly related to their operations, products, or services provided through their business relationships, even when they have not contributed to generating them."
The Court also emphasized that the law in question violates children's rights (Article 56 of the Constitution), especially considering the current climate situation. This calls on States to observe the precautionary principle in their decisions. In this regard, the Court specifically refers to the Committee on the Rights of the Child's General Comment No. 26 on the Rights of the Child and the Environment, with particular emphasis on climate change.
The Supreme Court ruling unified the various lawsuits and determined that Law 406 was unconstitutional, annulling the concession contract with Minera Panamá, SA, which represents an important precedent in environmental protection and the regulation of mining activity in Panama.
The Supreme Court ruling consolidated the various lawsuits and determined that Law 406 was unconstitutional; the mining concession was annulled, and the State's sovereignty over natural resources was reaffirmed, as the contract contained provisions that did not comply with the Constitution of Panama or international environmental agreements. This represents an important precedent in environmental protection and the regulation of mining activity in Panama.
The Supreme Court ruling addresses the challenges of climate change by referring to the intersection between mining and the rights of indigenous communities.
It mentions the ecological impact of mining in the Mesoamerican Biological Corridor and the adverse effects on the protected forest within the Corridor, a key ecosystem for biodiversity and climate regulation. Furthermore, it highlights concerns about river pollution from tailings and the risk of flooding due to heavy rainfall, which could exacerbate the effects of climate change in the region.
Finally, it points out that the law violates fundamental regulations, the Escazú and Paris Agreements, and the Stockholm Declaration, and contravenes human and environmental rights due to the lack of prior consultation with the affected communities. It insists that the government, by neglecting its duties, failed to ensure the population's right to a healthy and pollution-free environment.
- Panamanian lawyer
- Environmental and academic groups.
- Civil society, students, and indigenous communities.
- National Assembly.
- State of Panama.
- Corporations.
The mining project area is located in the district of Donoso, Colón province, Panama. This territory is part of one of the country's most biodiverse and environmentally sensitive regions. It covers more than 12,000 hectares within the Mesoamerican Biological Corridor, a key ecosystem for biodiversity conservation. It is approximately 120 km from Panama City, on the Caribbean slope.
Environmental characteristics:
The area is a tropical rainforest with a great diversity of flora and fauna, including endangered species.
It is part of the Donoso Forest Reserve, a protected area within the Mesoamerican Corridor.
It is home to rivers and watersheds, such as the Caimito River and the Petaquilla River, which are essential sources of water for local communities.
It is a region with high rainfall, which increases the risk of overflows of water contaminated by mining.
Standards
- Paris Agreement.
- Escazú Agreement.
- ILO Convention 169.
- Stockholm Declaration.
Beginning
- Prevention.
- Caution.
- Common responsibility.
- On sustainable development.
- Progressiveness.
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