Let me start this article by stating that I am fully in support of the current Costa Rican Administration’s policy to ban future open-pit mining projects in Costa Rica.

Those of us who live in the western suburbs of San Jose need only look to the mountains south of Santa Ana to understand the blight that the open-pit gravel quarry has left on the landscape there. Clearly, tourism is the “goose that lays the golden egg” in Costa Rica, not open-pit mining. These two activities, in my opinion, are mutually exclusive activities, especially in a country the size of Costa Rica, which promotes the environment as its main tourist attraction.

However, as a Canadian, a naturalized Costa Rican, and a qualified Lawyer in both Canada and Costa Rica, I would like to address the recent Costa Rican Court decisions on the validity of the Crucitas mining project from a legal prospective.

Over the twelve years that I have lived in Costa Rica and studied law here, I have questioned in my own mind, from time to time, the true independence of the Judicial Branch of Government. Court decisions that I have observed from time to time, particularly at the level of the Constitutional Court (Sala IV), in my opinion, have had the appearance of being more politically based, than legally based.

In other words, the Judicial Branch of Government was acting more like an extension of the Executive Branch, and not exercising a true independence in its decision making powers.

Judicial Independence is, of course, a corner-stone of Democracy, providing the “check and balance” in the System, necessary to impart fair and impartial justice, based on the Decrees and Laws promulgated by the Executive and Legislative Branches of Government.

That is not to say that other “Democracies” haven’t been guilty of compromises in that regard from time to time; the U.S. Supreme Court’s decision in the election results between Bush and Gore, being one of the best examples, that in my opinion, I can think of in that regard.

In the Crucitas example, both the Constitutional Court and the highest Administrative Court (Contencioso-Administrativa), have reviewed the permitting process leading to decisions to grant the Crucitas mining company the right to continue mining.

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In my opinion, they were the correct legal decisions to have been reached based on the issues presented to the Courts. I am aware that there are come outstanding environmental infractions by the Company that are still outstanding, but I believe that they are nothing that will prevent the project from continuing its mining operation. Should the Costa Rica Government proceed with a cancellation of the mining rights in the face of these Court decisions, a significant damages claim would have to be paid to the Crucitas mining company (est.1.7 billion dollars).

Clearly, the current Costa Rican Administration, based on current open-pit mining policy, would have liked nothing better than to have the Courts discover an impediment in the permitting process that would have lead to a cancellation of the Crucitas project and the avoidance of having to pay damages (est.1.7 billion dollars). If there was ever an opportunity and a will for political interference to influence the Courts’ decision making, this would have been it.

My faith in the independence of the Judiciary in Costa Rica, exercised in the spirit of a true Democracy, has been bolstered by these Court decisions.

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Written by Lic. Rick Philps. Richard (Rick) Philps is a Canadian citizen, naturalized as a citizen of Costa Rica. He was born, raised, and educated in Victoria, British Columbia, receiving a Bachelor of Arts Degree in 1977, and a Bachelor of Laws Degree (English Common Law) in 1980, from the University of Victoria. He thereafter practiced law in Victoria, as a member of the Law Society of British Columbia, for fourteen years, prior to moving to Costa Rica in 1998.

Mr. Philps earned his Bachelor of Laws and Licensing Degrees (Civil Law), and a Post-Graduate Degree in Notary and Registry Law, from the Escuela Libre de Derecho University, in San Jose, is a member of the Costa Rica College of Lawyers, and has practiced law in Costa Rica for seven years. Mr. Philps practices law in the areas of real estate and development, corporate, commercial, contract, immigration, and

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