Friday 24th November 2023.
November 23, 2023
Minera Panamá, SA , through its special representatives, the forensic firm Morgan & Morgan , requested the Supreme Court of Justice (CSJ) to declare that Law 406 of October 20, 2023 , which adopts the contract between this company and the Panamanian State, for the extraction of minerals in Donoso .
The petition of the mining company (subsidiary of the Canadian company First Quantum ) is in two allegations (one of 102 pages and another of 110) that Morgan & Morgan presented to the CSJ on November 21, in relation to the unconstitutionality claims against the Law 406 filed by lawyers Juan Ramón Sevillano and Martita Cornejo . The first has Judge María Eugenia López Arias as its speaker and the second, Judge Olmedo Arrocha . The attorneys of the Administration, Rigoberto González , and of the Nation, Javier Caraballo , have already issued opinions in this regard and both believe that Law 406 is unconstitutional.
The mining company recognizes that a declaration of unconstitutionality of Law 406 would mean the cessation of operations of the mine and that currently there is already a temporary cessation , due to the blockades and demonstrations against the mining contract. She alleges that there is “political and social pressure” to issue a ruling in favor of the plaintiffs.
Regarding Attorney González’s analysis, the mining company (through its representatives) maintains that it is “very superficial, but very biased.” Regarding Attorney Caraballo, she observes that he issued his statement on the same day that it was notified by the Supreme Court, last October 31. “It is striking that the official in question has only dedicated a few hours to the analysis of such a transcendental and vital issue for our country, which was undoubtedly reflected in the precarious concept expressed,” he points out.
Attorney González warned that Law 406 violates, among other things, Article 266 of the Constitution , since there was a direct negotiation between the Ministry of Commerce and Industries (Mici) with Minera Panamá, instead of calling for a public tender. Contracting, through a special or exceptional procedure, involves the presentation of a well-founded technical report and an announcement of this intention, among other prerequisites, “which is not observed in the reviewed documentation,” said González. That fact was also noted by prosecutor Caraballo.
In this regard, Minera Panamá replied in its argument that Article 266 of the Constitution is not applicable to mining concessions, but even if it were, there are “exceptions” determined by law, as is the case of the concession in Donoso.
The company also maintains that the mining contract does not violate the Escazú Agreement , since – as it says in its argument – it does not “alter” any legal system on environmental matters nor does it constitute in itself an environmental decision, “which puts it outside the scope of application of the Escazú Agreement”.
“The reality is that the contract approved by the attacked norm was the subject of extensive public consultation and, as we have seen, widely reviewed and commented on even by its most fervent detractors,” he mentioned.
Another aspect mentioned in the pleading is that – contrary to what both attorneys have warned – the Mineral Resources Code – always according to Minera Panamá – does not prevent a foreign government from being an indirect shareholder in a company that holds a mining concession.
“The granting of a mining concession to a company with indirect shareholders that are foreign governments does not violate the provisions of Article 290 of the Constitution ,” says the mine, which has acknowledged having companies such as Korea Mine Rehabilitation and Mineral Resources Corporation as affiliates. .
Additionally, after the passage of Law 406, Jiangxi Copper, China’s largest copper producer, increased its stake in First Quantum from 18.3% to 19.5%, after purchasing 1.3 million shares.
“A company with the shareholding composition described above is something very different from a foreign government or official or semi-official foreign entity,” the company emphasizes in its statement.
The mining company also reminds the Court of the economic benefits of its operation and maintains that in 2022, the Panamanian State “retained” 75% of the company’s profits after the minimum payment of $375 million in annual contribution. , established in Law 406. It adds that Minera Panamá represents 4.8% of the GDP, employs 2.3% of the country’s working class and generates an annual income for the country of $450 million per year.
The plenary session of the CSJ reported that this Friday, November 24, it will meet, in a permanent session, to discuss the demands of Sevillano and Cornejo. There are 8 other unconstitutionality lawsuits against Law 406, but they are in other stages and are not ready to fail.
The Ministry of Commerce and Industries (MICI) announced this Thursday, November 23, that it signed 12 administrative resolutions that reject requests for extensions for the extraction of metal mining and requests for metal mining exploration.
This, by virtue of Law 407 of November 3, 2023, which prohibits the granting of concessions for the exploration, extraction, transportation and benefit of the exploitation of metal mining throughout the national territory.
In a new message to the country, the National Council of Private Enterprise (Conep) questioned the Government’s lack of authority to put an end to a series of events that are affecting citizen coexistence and the country’s productive sectors.
The business sector highlights that in the last 30 days in Panama there have been constant road closures, which are affecting the daily life of citizens with the loss of medical appointments, education on pause and a painful destruction of the Panamanian economy. .
“Small, medium and micro-enterprises have received first-hand the most accurate blows, producing an alert regarding its consequences, which range from unemployment to the deepening of informality that had already increased as a result of the pandemic.
In the face of this, there is an absence of authority, whose persistent silence and inaction means that groups that promote chaos and anarchy define the future of everyone,” is reflected in the Conep statement.
The union wonders how long all of this will be allowed and states that the country’s patience has run out.
Panama registers its fifth week of protests and road blockades in rejection of the mining contract between the State and the company First Quantum, for the exploitation of copper in Donoso, Colón.
Conep states that we must wait for the ruling of the Supreme Court of Justice on the unconstitutionality claims that have been presented against the contract and that we must also have the commitment to respect it.
“Let us all seek solutions to our problems, without the ideological and political contaminants that never help to find ways of understanding. The ruin of the nation is not the way. Until when? remains the question for the authorities…”
Improvisation. This is how the management of the Ministry of Agricultural Development (MIDA) was described by the union of fishermen and industrialists gathered in the National Chamber of Fisheries and Aquaculture of Panama and fishermen’s associations of Chiriquí, Puerto Caimito, Juan Díaz and the National Federation of Artisanal Fishermen (Fenapesca ).
In a press conference this Thursday, November 23, the fishing union thus reacted to the modification of Executive Decree 13 issued by MIDA on November 13 to regulate Law 205 of 2021, which regulates fishing in Panama. Specifically, they question the ban on fishing species such as cojinúa and lobster on a medium scale, which endangers the sector that directly employs more than 50,000 people.
“Preventing cojinúa fishing constitutes an attack on the country’s food security,” the fishing union stated in a statement, while recalling that it is the type of fish they supply to the national consumer market.
They also criticized the government’s “improvisation” by first issuing a regulation and approving a new modification a week later.
This situation occurs in the midst of the dismissal of the director of the Aquatic Resources Authority (ARAP), Yarelis Martínez, who denounced the Minister of Agricultural Development, Augusto Valderrama, for gender violence and for supposedly being behind the controversial article that reflected initially trawling for croaker, sole, snapper and bighead in the regulations of November 13, and which was later expressly prohibited in the modification of the decree of November 20.
According to the president of the Chamber of Fisheries, Gustavo Zúñiga, this decree did not create a new fishing art, but rather recognized a developed fishery to “then enter into specific regulations.”
The fishing vessels also showed their concern about the effect that these events may have on the status that Panama currently has before the European Union, which monitors illegal fishing in different countries and has Panama in its sights with a yellow card.
If the status is worsened to a “red card”, Panama would not be able to export fish to the European Union, which is the second largest destination for this product after the United States.