This February, Panama, one of the most mega-diverse countries in the world, became the first Central American nation to recognise nature as a bearer of rights, as President Laurentino Cortizo signed a ground-breaking law declaring that anyone who violates these rights would be prosecuted.
Panama’s move is one of several recent developments in Central American environmental policy that, at first glance, hint at better governance of nature in the region. It was followed by the Honduran government announcing that it would prohibit open pit mining – albeit only partially.
Elsewhere, the regional appeals court, the Inter-American Court of Human Rights recently heard the case of Guatemala’s Q’eqchi’ community who called for the closure of a nickel mine opened on their ancestral territory without consultation. It established an important legal precedent in indigenous peoples’ rights to participate in decisions on natural resource sovereignty in the country.
Central America is facing great challenges in terms of environmental protection: the region is plagued by massive deforestation and some of the highest death tolls of frontline defenders anywhere in the world. While these recent cases might appear to represent significant progress, experts view them with a mixture of hope and scepticism. The lack of robust mechanisms to implement new laws is one of the main obstacles to meaningful advances.
Panama recognises nature’s rights
Luisa Araúz was a legal advisor at Panama’s Ministry of Environment during the creation of the law recognising nature’s rights, Law 287. Its approval, she says, is “an achievement for Panama and for the region”. Until 2022, across Latin America only Ecuador – a pioneer in this area – Mexico and Bolivia fully recognised nature’s rights.
Araúz says that the law proposes “a new way of seeing and relating to nature”, since most environmental laws and regulations put humans at the centre of the discussion.
The law establishes that the state and all persons, whether 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 timely and effective restoration, and the right of nature to preserve its water cycles. It also establishes that any action of a person, corporation, institution or government that infringes these rights can be held legally responsible by the state for its actions. But such mechanisms will become clearer once the law has regulations to guide how it will be enforced.
For Araúz, the law’s eighth article is one of its key parts: it identifies the integration of indigenous knowledge as key to the law’s implementation. Another of the novel aspects that Araúz highlights is the inclusion of the concept of the “circular economy” – the obligation to regenerate and return resources to nature once they are used.
According to Araúz, it is clear that the environment ministry will oversee the implementation of the law. However, Panama’s Executive branch has yet to discuss its regulation.
Regulations relating to forest management must also be updated for the law to be effective. But according to Araúz, the recognition that various activities impact the rights of humans and nature makes Panama a pioneer in a region that is starting to make seemingly big statements in environmental governance.
Honduras bans open-pit mining
On 28 February, one month after taking office, Honduran president Xiomara Castro published a statement through the Ministry of Energy, Natural Resources, Environment and Mines that declared the country “free from open-pit mining”. This type of extraction is considered to be one of the most devastating for landscapes and among the most polluting due to its use of harmful chemicals to separate metals from compound materials.
However, an activist from the Guapinol Land Defence Movement, who preferred to remain anonymous, told Diálogo Chino that there is scepticism surrounding the Castro government’s statements, as there is still no legal backing. Without it, civil society organisations and activists have no instruments to invoke against extractive industries. In fact, in the first 100 days of Castro’s government, a number of promises have yet to be supported by clear or transparent policies showing how they will be fulfilled, local news platform Proceso noted. Nor is there clarity on existing projects.
“Open pit mining is prohibited, but nothing has been done with the concessions that are already granted,” says Juan Mejía, an engineer in charge of investigations at the Broad Movement for Dignity and Justice in Honduras, an environmental organisation.
“There are documented cases like the mining company in Azacualpa [a municipality in the western Santa Bárbara department], with 14 proven cyanide spills in the rivers. This company is already in the process of obtaining the renewal of the concession,” Mejía says.
And although the nationwide ban would seem wide-ranging, Honduras currently only has one open-pit mining project – in San Andrés, in the northwestern department of Copán. It is controlled by the multinational Aura Minerals, which extracts and exports gold.
Open pit mining is prohibited, but nothing has been done with the concessions that are already granted
Environmentalists say attention should be directed at other mining projects that involve techniques distinct to open-pit extraction that cause environmental harm. They point to iron oxide operations in the northeastern jurisdiction of Tocoa belonging to 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 have been murdered in the last two decades, with most activists opposing extractive projects, largely associated with mining.
The most recent mining-related conflict involved a confrontation in 2018 in which eight activists were accused of various crimes, including setting fire to containers belonging to Inversiones Los Pinares as a form of protest, and a road blockade that turned violent. The activists accused the company of polluting the Guapinol river in the department of Colón, a water source which supplies several communities. The activists have been held in pre-trial detention since 2019.
Guatemala must consult indigenous communities
In 2011, the Mayan Q’eqchi’ indigenous community of Agua Caliente, in Guatemala’s El Estor municipality, filed a case to the Inter-American Commission on Human Rights (IACHR), demanding rights to their ancestral lands that had for decades been used for nickel mining operations without their consent. In August 2020, the IACHR escalated the case to the Inter-American Court of Human Rights.
In 2021, the indigenous communities and the country’s Guild of Artisanal Fishermen managed to stop the Fénix mining project, owned by the Swiss-headquartered Solway Investment Group, successfully claiming before the court that they were denied a formal consultation on its impacts. In April 2022, Guatemala’s constitutional court reaffirmed that the consultation process was illegal, despite its endorsement by the government.
However, Juan Carlos Villagrán, an independent Guatemalan consultant for environmental issues, says that, despite this, the mining company has not ceased its activities. On a field trip at the end of April, he claims to have verified numerous trucks continuing to load material at the site.
Moreover, Villagrán says that the consultation on the activity of the mining company in El Estor was endorsed at the time by some members of the Q’eqchi’ community that had been selected for consultation by the company itself. They declared before the IAHCR in March 2022 that they rejected the land titling process mandated by the court, and that they were satisfied with the mining company, since their operations generated jobs. These Q’eqchi’ community members call themselves the “legitimate representatives”. They do not include any of the activists.
Even if there is an eventual favourable ruling for the community, Villagrán adds that there is still much to be resolved in Guatemala in order to guarantee that any binding resolution will be fulfilled. He says that greater budgetary commitment, disincentives for non-compliance such as fines and bans, and the need for mechanisms that regulate environmental impact assessments (EIA), mandatory in this type of extractive project, are all required.
A region in crisis
The Honduras ban 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 nation to impose a blanket ban on metals mining, suggest that a future of stronger environmental legislation in the region is anything but secured.
Despite its 2017 pledge, in May 2021, El Salvador joined the Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development.
What’s more, several Central American countries have yet to sign or ratify the Escazú Agreement, which promotes transparency on environmental information, as well as the rights of nature’s defenders and indigenous peoples. They include Costa Rica, one of the initial architects of the accord and home of the town that bears its name.