Alfonso Caso
Managing Partner
AOSENUMA
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Startup Contributor

Indigenous Consultations in the Current Political Context

By Alfonso Caso | Mon, 03/14/2022 - 13:00

CONSIDERATIONS ON INDIGENOUS CONSULTATION IN THE CURRENT POLITICAL CONTEXT

Background:

In 2011, the Mexican Constitution was amended to incorporate a series of provisions on the recognition and protection of human rights, establishing its inherent connection to human dignity. The reform introduced the pro homine principle as well as the principle of conventionality, compelling all jurisdictional and administrative authorities to interpret provisions connected to fundamental rights in accordance to international treaties and principles, favoring the interpretation/application that is more suitable to guarantee the enjoyment and protection of fundamental rights.

Among other things, this underscored the need for Mexico to comply with the guidelines established in the 169th Convention for International Labor Organization on Indigenous and Tribal People, which was adopted by Mexico on September 6, 1991.

Some of the fundamental rights for indigenous people and communities, comprise their right for autonomy and self-determination. As part of these rights, indigenous people and communities have the right to consultation, by virtue of which they can effectively participate in the process of decisions related to projects that may affect these communities and its resources. In conjunction with the right to express consent or reach agreements (which also embodies the correlative obligation to the State to consult) the right to consultation is essential for indigenous people and indigenous communities.

Therefore, in 2013, and in accordance with the standards of the 169th Convention for International Labor Organization on Indigenous and Tribal People (ILO), the Protocol for the Implementation of Consultation with indigenous people and communities was approved. In essence, the protocol indicated that a consultation process had to be launched by initiative of the responsible authority, or by request of the indigenous people and communities that could be potentially affected by the respective project.

This protocol provides some of the following relevant definitions:

  • Responsible Authority: Any institution of the Mexican State, including autonomous institutions that are responsible "for issuing an administrative or legislative act that is likely to affect indigenous and Afro-Mexican people and communities."
  • Technical Advisor: This role has been assigned to the Commission of Indigenous People (CDI) known today as National Institute of Indigenous People (INPI).
  • Guarantor Body: The National Human Rights Commission, or, where appropriate, the respective state commission. On certain projects the appointed guarantor body has been the Secretary of Interior.

On August 11, 2014, subsequent passages of the Hydrocarbons Act and the Electrical Energy Act regulated the way in which interests and rights of indigenous communities and people should be considered, along with the consultation procedures that should be followed for its safeguard.

In January 2017, Michael Forst, special rapporteur for the United Nations on the situation of human rights in Mexico, issued his end-of-mission statement, commenting: “In all the states I visited, I was dismayed by the number of on-going conflicts that are the direct consequences of the lack or misuse of consultations processes with indigenous communities. In many occasions, consultations are a simple formality for projects that have already started to be implemented. I strongly encourage the Mexican authorities to guarantee the free, prior and informed consent of indigenous communities…”

Current situation:

In response to these changes, a discussion arose regarding the importance of having a general law to regulate consultation processes in Mexico, and on April 20, 2021, the Chamber of Deputies approved the draft of a decree entitled “General Law on Consultation of Indigenous and Afro-Mexican People and Communities,” which was then sent to the Senate for its analysis and vote, where it is currently being discussed in various senate committees.

The aim of this law is to establish the right of indigenous and Afro-Mexican people and communities to “Prior, Free and Informed Consultation” (PFIC) regarding measures or actions that may affect their way of life, their social, political, economic, and cultural organization, and/or their lands, territories, and natural resources.

The initiative provides two general types of consultation:

  • Consultation to obtain consent from people and communities on specific actions.
  • Consultation on actions that do not require the consent of people and communities.

Consultation that requires consent, refers primarily to:

  • Projects or decisions that affect the lands, territory and/or natural resources of indigenous and Afro-Mexican people and communities, in particular those that may affect the use and exploitation of mineral, hydrologic, eolic and genetic resources.
  • Relocation or transfer of indigenous or Afro-Mexican communities.
  • The possible deprivation of or effect on any cultural, intellectual, religious, or spiritual goods necessary for the physical and cultural subsistence of these communities and its people.
  • Any type of seizure, occupation, use, or damage carried out on lands and territories that have traditionally been owned or occupied or otherwise used by indigenous and Afro-Mexican people and communities.
  •  The storage or disposal of hazardous materials on the lands or territories of indigenous and Afro-Mexican people and communities.

Considerations:

Since all projects subject to indigenous consultation require a “social license to operate” the passage of this law should be analyzed from its legislative and social perspectives. From a legislative point of view, it is important to analyze whether there is a legal entity capable of acquiring rights that may be affected by a given legislative or administrative provision, action or project. From a social point of view, the possibility that cultural or spiritual goods may be affected requires an anthropological characterization and analysis, because these elements are often subject to interpretation and dispute, and are frequently used to argue that a community is indigenous and that its rights are being affected.

For the first time in México, the Supreme Court has struck down a mining concession to the Canadian Almaden “insubstantial” under the argument, that the Government should have carried out a prior consultation in Tecoltemi Hidalgo, as it is an indigenous community in the ejido of the same name. Almaden Minerals' project consisted of opening an open pit mine to extract gold and silver. Driven by the fear of running out of water for the crop fields, the town presented an amparo that for almost seven years has been escalating judicial instances until reaching the highest court. The judgment of the Supreme Court opens the door to the cancellation of other permits. This decision could affect rights protected by international treaties signed by México.  The court ministers have refused to declare four articles of the Mining Law unconstitutional, as the ejido claimed.

With this in mind, what is known as a Community Analysis of Rights for Consultation needs to be undertaken as soon as possible to determine whether a project requires a PFIC or whether the existing community engagement efforts should incorporate additional criteria of cultural origins and belongings to analyze the possible impact of the respective project.  It would be desirable to start assessing the possible risks and impacts that certain project could have on these people and their communities and create a set of equivalent participatory mechanisms to guarantee companies’ respect for human rights as part of an up-to-date diagnosis in keeping with the new legal framework that is making its way through the legislative sphere.

Therefore, some communities may begin to seek recognition as indigenous communities with the intent to modify the framework for the social investment that has already been agreed upon, along with the existing mechanisms of community engagement, which is why the planning processes of companies should include a study on the social fabric and key actors/factors in the communities where they operate. This will help them to strengthen their presence and engage with indigenous communities in a culturally appropriate manner.

It is an undeniable reality that we are in the midst of a global process in which human rights are being strengthened by the incorporation of policies and mechanisms on inclusion, gender and vulnerable groups, which are also related to the environment, as established in the United Nations’ Sustainable Development Goals (SDG) and the recent agreements reached in 2021 COP 26.

The State´s duty to consult indigenous people is grounded in the exercise of a series of human and collective basic rights, including the right to free determination and cultural integrity, to curb the State’s exercise of power.

If the bill that has been sent by the lower house of Mexican Congress to the Senate is signed into law, it would establish the requirements that the Mexican government must observe to encourage a good-faith, culturally pertinent dialogue for reaching agreements on decisions that may directly affect the rights of indigenous and Afro-Mexican people.

It is of the utmost importance to have updated diagnosis of indigenous consultation rights for projects in current operation and to assess the feasibility of new investments being subject to a process of PFIC. The legal and administrative framework and provisions regulating the possible affections to the rights of indigenous people and their communities should focus on building a mutual understanding between indigenous people and indigenous communities and private and public actors to promote long term relationships that facilitate the development of projects and its investments to overcome the socio-political uncertainty that Mexico has faced throughout the years.

Photo by:   Alfonso Caso