The Civil
Society Initiative for the Environment (ISCA) is a group of
organizations dedicated to the environment, society, and human
rights. It seeks to incorporate ethics in the relationship
between humans and nature. We would like to share the
viewpoints of our member organizations about the bases for
proposed reforms to the Code of Mineral Resources of the
Republic of Panama (Decree 23 of August 22, 1963) with the
community.
After an
analysis of the summary of the proposed reforms to the Mining
Code submitted by the Director of Mineral Resources of the
Ministry of Commerce and Industry, we consider that the
following observations merit attention:
* FROM
PUBLIC ASSETS (BELONGING TO EVERYONE) TO "MARKET"
(PRIVATE) ASSETS. The conceptual basis of the reform sets
forth the autonomy of mining grant entitlements from the state.
That is, it converts mining from an activity of the public
domain to an activity of the private domain. By doing this,
reformers intend that mining grants will be real estate rights,
with the purpose of facilitating acts and contracts between
private parties without state intervention, in accordance with
the principles of "free market." The proposal
considers that this circumstance is subject to constitutional
limitations such as those contained in Article 254, Sections 5
and 6 of the Constitution, which indicate that underground
wealth, including mines, may be exploited by government
enterprise, or mixed, or given by grant or contract to private
enterprise. This, in terms established by law; but the
Constitution makes it clear that they can't be the privately
owned. Nevertheless, the reform would give a cover of legality
for something unconstitutional.
*INDEFINITE -
-- OR IN PERPETUITY. The reform sets forth that mining
grants for exploitation would last indefinitely. This would tie
the Panamanian state to a perpetual relationship where, of
course, the population is on the losing side and the enterprise
has all the advantages. If the operation is profitable, the
enterprise would meet its obligations, but if it becomes
unprofitable it could be abandoned so someone else can take it
over without it ever reverting to the state. In case the state
needs to cancel the grant, it would undoubtedly have to pay
large sums in compensation, even if cancellation is due to
matters of public interest. It is simply absurd that the
Panamanian state, in the process of pseudo-development, should
sacrifice not only its people and its environment, but also
give up its inherent rights, which other nations (those of the
investors) would never renounce.
* TAXES,
FIDUCIARY FUNDS AND EVASION OF RESPONSIBILITY? The payment
of the annual rent should not be fixed only on the extent of
the affected territorial surface, without considering factors
such as geographic conditions of the area, biological wealth,
and the archaeology of the specific area that would be
affected, all of which should be considered when decisions are
made. We object also to fiduciary funds established in the
proposal coming from the taxes the enterprises must pay the
state --- they should come from utilities, benefits, or profits
by the enterprises.
*
RESPONSIBILITIES OF MINING DEVELOPMENT. In a portion of the
document we read: "Shared responsibility, that is, the
government and civil society share responsibility in the
obligations, burdens and benefits of the development." We
consider this assumption to be unjust. Panamanian society has
not asked, demanded, or registered among its interests, the
type of development implied in this activity. Society has no
reason to share the burdens (read damages).
*
ENVIRONMENTAL DAMAGE AND SANCTIONS. The sanctions for
environmental damage should be subject to Article 114 of
General Environmental Law 41 of 1998. Sanctions related to
mining activity should be revised according to the provisions
of the present code in order to make them mandatory. We insist
on this, because if the system is made flexible, greater risks
will be taken and the penalties should be dissuasive. That is
why we find it inconvenient to include a written warning as a
sanction, due to the risks implied in mining activity, which
leave no room for light sanctions.
* INTEGRITY
OF THE MINING SECTOR. The reform does not include non-
metallic mining, which would leave us a patched up code with
juridical voids, without adequate protection from the
environmental and social points of view, for non-metallic
mining exploitation. If there is an attempt to reform the code,
the proposal needs to create a new legal concept of mining
resources that is environmentally viable, whole, and
participatory.
* RISKS OF
THE PROPOSED PROCEDURES. The document containing general
proposals doesn't specify the mechanics for allocating mining
grants. The reform would eliminate the formality of contract
laws, replacing it with the haste with which a corporation is
recorded in the Public Registry. With contract laws, the civil
society has greater opportunities to influence the decision
making process. If the negotiators of the reform contend that
the acquisition of a grant title doesn't imply the
authorization for further extraction, it would be a fallacy to
think that the grantee of a recorded grant would not attempt to
exploit, tax, sell, or obtain a benefit from his investment. It
is imperative to strengthen the requirements pertaining to the
environment and community participation with which the
enterprise would need to comply.
* NATIONAL
GOVERNMENT IN DANGER. The proposed reforms to the Mining
Code result in a serious danger to the economic, social, and
political stability of Panama. Among other things, because it
allows state property to become an asset of market agents,
leaving it open to appropriation and multinationalization.
Meanwhile, by virtue of the direct recording of the grants in
the Public Registry transnational mining companies could argue
reasons of "juridical security," thus evading later
environmental and social responsibilities, opening doors for
claims against the Panamanian state. For example: if
environmental impact studies turn out contrary to the
feasibility of the project, that is, if communities or the
state, decide they aren't interested, it would allow the
grantees to submit claims for assumed damages caused by Panama,
on the basis of supposed juridical insecurity.
If the
projected reforms take effect as they are stated in the summary
submitted by the Ministry of Commerce and Industry, Panama
would fall like another piece within the global voracity of the
multinationals, with the plundering and impoverishment that the
mining corporations leave behind. History shows that this has
happened in other countries in the world and in
Panama.
Also in this
section:
ISCA, Proposed Mining Code changes
Girvan, US-Central
America free trade talks
RSF, Freedom of the press
in Panama
Jackson, Alemán
and the torture ship
Hartmann, Never-ending
"War on Terrorism"
SUNTRACS, Mayday
message
