Indigenous Consultation Reform Imminent

Mexico’s Supreme Court declared that Congress has been neglectful in regulating consultations to indigenous and Afro-Mexican communities regarding bills and administrative decisions that directly affect their interests. The court ordered Congress to start the process in the upcoming legislative period, which starts in September. 

According to Milenio, Minister Fernando Franco stated that "Congress has not complied with its obligation to regulate the procedure that concerns prior, free, informed, culturally appropriate and good faith consultation with indigenous and Afro-Mexican peoples and communities." El Universal explains that the case which resulted in the court’s decision stemmed from an appeal filed by Zapotec indigenous people from San Sebastian Tutla, Oaxaca.

Complainants affirmed that Congress did not fulfill its responsibility to issue secondary laws for regulating consultation to indigenous people. Congress’ obligation to do so originates in the 2001 constitutional reform. Gabino Fraga, Director General of Grupo GAP, explains in an interview with Mexico Business News: “Mexico changed its constitution (that year), making it pro homine. This is a legal principle that says that juridical interpretation should always benefit the human individual. That is, when assessing a case, the judge should apply the law that brings the greatest protection to the individual. Therefore, if a judge is considering whether to apply an article in the Mexican penal code or an international treaty signed at the Hague, he will choose the latter if it protects an individual’s human rights.” Moreover, it is important to keep in mind that all international treaties that Mexico signs and ratifies have constitutional status and that Mexico has ratified ILO Convention 169.

Minister Franco acknowledged that some legislation related to consultation of indigenous and Afro-Mexican peoples and communities has been issued. However, he pointed out that no rules or procedures have been established to carry it out. If done right, this may be an opportunity to strengthen Mexico’s legal framework and mitigate risks for the country. “It is important that Mexico implements ILO 169 through clear protocols. Otherwise, Mexico exposes itself to being judged at an international court for human rights violations, which would be terrible for the country’s international standing. Furthermore, investors need the certainty to be able to carry out consultations to access land in an orderly manner,” says Fraga.

A potentially beneficial course of action would be to include indigenous consultations in the Mining Law and not through paralegal instruments, as the López Obrador administration has said it is inclined to do. Enrique Rodríguez del Bosque, in conversation with Mexico Business News, notes that “the major problems with a law arise when issues are not properly regulated by a document that establishes clear procedures in accordance with the Constitution.” Clearly regulating indigenous and Afro-Mexican consultations would be an asset for companies that want to do business in Mexico.

Nevertheless, lawmakers must also guarantee certainty during the imminent reform process. Carlos Pavón, General Secretary of the National Union of Miners and Metallurgists, said that “Congress has to make it clear that any changes in rules will not be applied retroactively; they must work from the present point and onward, not backward.”