Last February, Panama, one of the most mega-diverse countries in the world, became the first country in Central America to recognize nature as a rights holder, as President Laurentino Cortizo signed a groundbreaking law declaring that anyone who violates these rights be prosecuted.
Panama’s decision is one of many recent developments in Central American environmental policy that, at first glance, point to better governance of nature in the region. This was followed by the Honduran government announcing that it would ban surface mining – albeit partially.
In addition, the regional court of appeal, the Inter-American Court of Human Rights, recently heard the case of the Q’eqchi’ community of Guatemala who requested the closure of a nickel mine opened on their ancestral territory. without consultation. It set an important legal precedent in the rights of indigenous peoples to participate in decisions about sovereignty over natural resources in the country.
Central America faces great challenges in terms of environmental protection: the region is plagued by massive deforestation and one of the highest death rates of frontline defenders in the world. While these recent cases may appear to represent significant progress, experts view them with a mixture of hope and skepticism. The absence of robust mechanisms to implement new laws is one of the main obstacles to meaningful progress.
Panama recognizes the rights of nature
Luisa Araúz was legal advisor to the Panamanian Ministry of the Environment when it created the law recognizing the rights of nature, Law 287. Its approval, she says, is “a success for Panama and for the region”. Until 2022, in all of Latin America, only Ecuador – a pioneer in this field – Mexico and Bolivia fully recognized the rights of nature.
Araúz says the law offers “a new way of seeing and relating to nature”, since most environmental laws and regulations put people at the center of the discussion.
The law establishes that the State and all persons, natural or legal (such as corporations), must respect and protect the rights of nature. These rights include the right to exist, persist and regenerate their life cycles, nature’s right to prompt and effective restoration, and nature’s right to preserve its water cycles. It also establishes that any action by a person, corporation, institution, or government that infringes these rights can be held legally responsible by the state for their actions. But these mechanisms will become clearer once the law has regulations to guide how it will be applied.
For Araúz, the seventh article of the law is one of its key elements: it identifies the integration of indigenous knowledge as the key to the implementation of the law. Another of the new aspects highlighted by Araúz is the inclusion of the concept of “circular economy” – the obligation to regenerate and return resources to nature once they are used.
According to Araúz, it is clear that the Ministry of the Environment will oversee the implementation of the law. However, the Panamanian congress has not yet discussed its regulation.
Forest management regulations also need to be updated for the law to be effective. But according to Araúz, the recognition that various activities have an impact on human and natural rights makes Panama a pioneer in a region that is beginning to make seemingly important statements in environmental governance.
Honduras prohibits surface mining
On February 28, a month after taking office, Honduran President Xiomara Castro published a statement from the Ministry of Energy, Natural Resources, Environment and Mines declaring the country “free from surface mining”. This type of mining is considered one of the most devastating to landscapes and among the most polluting due to the use of harmful chemicals to separate metals from composite materials.
However, an activist from the Guapinol land defense movement, who preferred to remain anonymous, told Diálogo Chino that there is skepticism around the Castro government’s statements, as there is still no legal basis. . Without it, civil society organizations and activists have no instruments to invoke against the extractive industries. In fact, in the first 100 days of the Castro government, a number of promises have yet to be backed by clear or transparent policies showing how they will be kept, local news platform Proceso noted. There is also no clarity on existing projects.
“Open pit mining is prohibited, but nothing has been done with the concessions already granted,” said Juan Mejía, an engineer in charge of investigations with the Broad Movement for Dignity and Justice in Honduras, an environmental organization.
“There are documented cases like the Azacualpa mining company [a municipality in the western Santa Bárbara department], with 14 proven cyanide spills in rivers. This company is already in the process of obtaining the renewal of the concession,” explains Mejía.
And while the nationwide ban seems far-reaching, Honduras currently has only one open-pit mining project – in San Andrés, in the northwest department of Copán. It is controlled by the multinational Aura Minerals, which extracts and exports gold.
Surface mining is prohibited, but nothing has been done with the concessions already granted
Environmentalists say attention should be directed to other mining projects that involve techniques distinct from surface mining that harm the environment. They point to iron oxide operations in the northeast jurisdiction of Tocoa owned by the company Inversiones Los Pinares, which they accuse of damaging a forest reserve.
For more than five years, Honduras has been considered one of the most dangerous countries for land and environmental defenders. More than 120 people have been murdered in the past two decades, most of them activists opposing extractive projects, widely associated with mining.
The most recent mining conflict involved a confrontation in 2018 in which eight activists were accused of various crimes, including burning containers belonging to Inversiones Los Pinares in protest, and a roadblock that turned violent. Activists accused the company of polluting the Guapinol River in the department of Colón, a water source that supplies several communities. The activists have been remanded in custody since 2019.
Guatemala must consult indigenous communities
In 2011, the Q’eqchi’ Maya indigenous community of Agua Caliente, in the municipality of El Estor in Guatemala, filed a complaint with the Inter-American Commission on Human Rights (IACHR), demanding rights over their ancestral lands that had been used for decades for nickel mining operations without their consent. In August 2020, the IACHR took the case to the Inter-American Court of Human Rights.
In 2021, indigenous communities and the country’s Guild of Artisanal Fishermen managed to stop the Fénix mining project, owned by Swiss-headquartered investment group Solway, by successfully claiming in court that they were refused a formal consultation on its impacts. In April 2022, Guatemala’s constitutional court reaffirmed that the consultation process was illegal, despite its government approval.
However, Juan Carlos Villagrán, an independent Guatemalan consultant for environmental issues, says that despite this, the mining company has not ceased operations. During a field visit at the end of April, he claims to have checked many trucks continuing to load equipment at the site.
Furthermore, Villagrán claims that the consultation on the mining company’s activity in El Estor was approved at the time by certain members of the Q’eqchi’ community who had been selected for consultation by the company itself. They told the IAHCR in March 2022 that they rejected the court-mandated land titling process and that they were happy with the mining company because their operations were generating jobs. These members of the Q’eqchi’ community call themselves the “legitimate representatives”. They do not include any of the militants.
Even if there is a possible decision favorable to the community, Villagrán adds that there is still much to resolve in Guatemala to ensure that any binding resolution will be respected. He says greater budgetary commitment, disincentives for non-compliance such as fines and bans, and the need for mechanisms that regulate environmental impact assessments (EIAs), mandatory in this type extractive project, are all necessary.
A region in crisis
The banning of Honduras and the recognition of rights in Panama and Guatemala appear to be positive steps for Central America. Yet the lack of regulatory support and other cases, including that of El Salvador, which in 2017 became the first country to impose a blanket ban on metal mining, suggest that a future of tougher environmental legislation in the region is anything but assured.
Despite its 2017 commitment, in May 2021 El Salvador joined the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development.
Moreover, several Central American countries have not yet signed or ratified the Escazú Agreement, which promotes transparency of environmental information, as well as the rights of conservationists and indigenous peoples. Among them, Costa Rica, one of the first architects of the agreement and seat of the city that bears his name.