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Analysis

Importance of Legal, Material, and Social Land Evaluation

Wed, 10/21/2015 - 11:09

It is vital that all extractive projects, which by their very nature require large surfaces of land to develop, thoroughly evaluate the land where the project will be based. The evaluation needs to consider the legal, material, and social aspects of the land prior to choosing whether to base a mining project there. Land is an irreplaceable resource, so landowners are understandably attached to the unique characteristics of their properties, a fact which emerges when negotiating with a mining company. However, the nature of a project may often substantially modify the expectations of these landowners and complicate the negotiations. Moreover, the legal and social conditions of a piece of land do not always correspond with its technical and material conditions. This issue is directly linked to the level of acceptance of a mining project among social or political actors at the municipal, state, or federal level.

Once a company has precisely identified the property rights of the land on which a project may take place, and once it has also evaluated the legal and social reality of this land, it will be able to estimate timeframe and cost. It is vital to understand when the legal agreements will effectively guarantee legal certainty, particularly concerning the access to the land, after the negotiations are concluded, as well as the approximate cost of such an agreement. The timeframe for the agreement can be calculated based on legal characteristics including the current conditions of the land, any pending legal resolutions, a clear definition of the rights, or lack thereof, the situation on adjacent land parcels, who the titleholders are, and any prevailing political interests.

Human rights must also be taken into consideration when entering a piece of land for a mining project. As of 2011, human rights are enshrined as public rights under the jurisdiction of the Mexican government, obliging private companies to uphold them.

Around the world, there has been an important social movement in favor of local communities located near the development of large infrastructure or extractive projects. This makes it all the more important to take local communities into consideration and inform them of the full scope of the project and how it will benefit them. Infrastructure and extractive projects generate both positive and negative externalities. This means that local communities must be made fully aware of the reach of a mining project, the positive and negative effects it may have, and the mitigation and compensation measures that will be implemented, before the project begins. If a mining project is developed without complying with those needs, the company could be held accountable for violating the human rights of the inhabitants of the local communities, putting at risk the investment and the viability of the project. However, the evaluation of the land can shed light on certain risks facing the project. This will allow the company to take immediate measures to attend to these identified weaknesses and guarantee that its project has enough legal, material, and social certainty and protection.