2006-2017 The Mesa Nacional drafts and proposes Legislative Bans on Metallic Mining

The National Roundtable against Metallic Mining in El Salvador (Mesa Nacional) has been the driving force behind popular law-drafting efforts around the issue of metallic mining and its relation to human and environmental rights. The Mesa Nacional is an umbrella organization that began in 2005 in an effort to bring together social, environmental, and religious organizations from around the country to develop and advance strategic policies to eradicate metallic mining in El Salvador (Mesa Nacional, “Misión”). In or about 2006, The Mesa Nacional began considering legislative bans as a possible avenue for achieving this goal, in part, to consolidate the de facto moratorium already in place. In 2006, the Mesa Nacional drafted and submitted its first proposed legislation on prohibiting “metal mining in all its forms and regulation of non-metal mining” (Montoya, 2021). The law was entitled “Law for the Regulation of Mining Activity in the Country”. It contained 72 provisions and, while delivered to deputies, was never discussed in the Legislative Assembly. 

In 2013, the Mesa Nacional prepared a revised version of its draft legislation, focusing on five sections that sought a strict ban on metallic mining. The new proposed law was entitled, “Special Law for Banning Metallic Mining in El Salvador”. By according the law “special legal status”, the Mesa Nacional aimed to “ensure it would supersede any law with which it might clash” (Ibid). This proposed law was presented while the country was embroiled in a multimillion dollar international investment arbitration started in 2009 by Pacific Rim Mining Corporation against El Salvador for alleged damages arising from a failure to grant the company an exploitation mining licence in relation to the El Dorado mining project (See the Legal Action entitled, “2006-2016 Pacific Rim International Investment Arbitration against El Salvador“, for more information). 

In 2015, believing a negative ruling in the international investment arbitration dispute, the Mesa Nacional members reconsidered their strategy. They requested that the FMLN government pass an executive decree that would remain in effect until a different combination of political parties in the Legislative Assembly demonstrated a willingness to consider a ban. On 30 August 2016, the Mesa Nacional met with the President of El Salvador, the Minister of the Environment, and the Legal Secretary to the President to present a proposed Executive Order to suspend metallic mining. The Mesa Nacional argued that the proposed Executive Order was necessary because the existing mining law contravened Article 103 of the Constitution, which protects private property rights. The President, Salvador Sánchez Cerén (Farabundo Marti National Liberation Front, FMLN), confirmed his government’s commitment to not allow mining in El Salvador (ES No Minería, 2016). However, despite this commitment, the executive order was never passed. The Mesa Nacional continued with its efforts to pass a full legislative ban on metallic mining. In October 2016, the investment arbitration tribunal released its decision, dismissing the company’s claims against El Salvador, leading to renewed political pressure on the Salvadoran government to pass the legislative ban on mining. 

Importantly, the Mesa Nacional’s legislative efforts received support from religious organizations, including the influential Catholic Church. For example, in 2007, El Salvador’s Bishop Conference (CEDES) made public statements against mining and, in 2011, repeated this condemnation, demanding an outright ban. The decisive factor, however, appears to have been the active public involvement of the San Salvador Archbishop, who in February 2017 along with other senior religious officials and organizations, visited the Legislative Assembly with a legislation proposal to ban metal mining exploration and exploitation – small-scale as well as industrial – permanently (Ibid.; See also Nadelman, 2015). This proposal was prepared with the help of law professors from the José Simeón Cañas Central American University (UCA) and built upon the law-drafting efforts of the Mesa Nacional (Montoya, 2021). This version was ultimately approved by the Legislative Assembly in March 2017 (See the Legal Action entitled “2017 El Salvador passes Legislative Ban on Metallic Mining“, for more information).