By Nicolás Boeglin
First anniversary. Last week marked the first anniversary of the historic Nov. 24, 2010 ruling by Costa Rica’s Administrative Contention Court that revoked a government mining concession previously awarded to the Costa Rican subsidiary of a Canadian gold-mining company, which planned to operate at Las Crucitas, a village in the Northern Zone.
The widely read ruling sparked massive celebrations across the country; tears and hugs seemed contagious among opponents of the mine, but also many others, who had experienced months of tension and energy, and who demonstrated a total commitment to stopping the project. Scores of comments on social media networks immediately following the ruling reflected the joyous reaction to “the big news” of that November day. One only needs to read what was written that unforgettable afternoon to understand how three valiant judges had sent a profound message that goes straight to the core of Costa Rican society; and they did so despite an intense months-long publicity campaign by the mining company.
A recent documentary film by the University of Costa Rica titled “El Oro de los Tontos” (“Fools’ Gold”) indicates that the company’s publicity campaign, which included many “expert” opinions, was likely one of the most aggressive campaigns ever undertaken in Costa Rica by a private company. Yet representatives of that company repeatedly declined when asked to participate in public forums with academics and other experts at public universities. One of those forums, organized by the National Council of University Rectors, was held on the same day of the ruling at the National University, and included experts from the University of Costa Rica and the National University. Directors of the annual State of the Nation report moderated. For the umpteenth time, no one from the mining company showed up – neither company representatives nor any of their “experts.” It seemed to be a pattern with the company when they were invited to participate in public university forums about the mining project.
Crusades. Looking at the images of the Administrative Contention Court trial, the profound inequality between the two sides of the trial in terms of resources becomes evident. One side’s efforts came to resemble a crusade. At the trial, an additional table was brought in so that government and company experts, lawyers and assistants (including those from the Attorney General’s office, the Environment Ministry, National System of Conservation Areas and the Environment Ministry’s National Technical Secretariat, among others) could sit comfortably; meanwhile, the appellants, who opposed the open-pit gold-mining project, consisted of a small group of attorneys whose only motivation – and compensation – was a profound conviction to defend basic principles they believe in.
Another crusade, among many, took place on Sept. 11, 2009, during a visual inspection of the prospective mine site. During those judicial proceedings, two judges from the Constitutional Chamber of the Supreme Court (Sala IV) entered Las Crucitas mine escorted by company representatives – who were riding in their own vehicles – while appellants to the case were blocked from doing so. Appellants were forced to walk numerous kilometers underneath a harsh sun to arrive at the inspection site. The legal principal of equal trial terms for both parties suffered a grave blow that day, but it didn’t seem to bother the Sala IV judges.
The equality principle implies that for any judicial proceeding, judges should maintain a strict environment of equality for both parties, including equal access to sites, equal access to judges during on-site visits, and equal access to information regarding inspections (schedules, sites to visit, itineraries, logistical details, etc.). Improvisation by the two judges and their team was such that mining opponents and their experts were forced to file another legal action against them. This very cardinal legal principle that judges should afford strict equal treatment to both parties seems to have been seriously “double-crossed” during the inspection by two members of Costa Rica’s Constitutional Court.
Unrestricted adherence to institutional processes. In all of their actions, particularly before the Administrative Contention Court, the appellants strictly adhered to the Costa Rican judicial system and respected the rulings of judges. The appellants were confident that the many details of the case, which were only known by two of the seven Sala IV judges, would be better analyzed by a more technical tribunal than the Sala IV, the Administrative Contention Court.
Yet what should be a time for celebration on this first anniversary of the great triumph of Costa Rican justice has been overshadowed by recent revelations that a ruling by the Supreme Court’s Civil and Administrative Law Branch (Sala I) was leaked to one of the parties of the case, and of damning statements recently made to the press by a former company spokesman. These events are grave and transcend this one case. They cast a shadow over the efforts of this country’s ecologists, and they constitute, in the words of Sala I judge Román Solis Zelaya, a true “attack against this country’s legal system and the very foundations of the Republic as it stands.”
The previous weeks’ events have once again put in the public spotlight a mining project located in a remote village named Las Crucitas (Little Crosses) – a name that now seems to have been chosen by fate as the setting for an endless novel.
Nicolás Boeglin is a professor of law at the University of Costa Rica.
