Eduardo Robles
Tapia, Robles, Cabrera y Moreno S.C.
View from the Top

Knowledge of Sonora State an Added Value for Attorneys

By MBN Staff | Mon, 04/20/2020 - 12:48

Q: What is the firm’s main area of expertise in the mining industry?

A: Although our firm serves a wide range of industries and interests, we have a strong Mining Law and practice department. With our experience and expertise in that field and its related areas of concern (corporate law, administrative law, environmental law, compliance law, contracts law, labor law, among others), for years we have been assisting foreign investors to do mining businesses in Mexico. Eventually, we also advise and represent them in court, whenever this is necessary.

Q: What added value does your deep understanding of Sonora provide?

A: Circa thirty years ago, the first point of contact for mining investors in Mexico was with an office in Mexico City. Decentralization is a reality in the industry since then. Nowadays, very competent law firms are found all over the country. As part of that phenomenon, in many respects, our law firm, with its local and regional emphasis, is better positioned to serve state and regional investors, due to our familiarity with the milieu, to our local contacts, to our availability to have a presence on the site and at the relevant governmental offices more cost-efficiently, and to our capacity to act and react more rapidly. A selected group of Mexico City lawyers, all of them highly qualified, help us complete proceedings there mostly as correspondents, with us preserving the lead and the direction of the matters.

Also, it should be said, our local and regional accent does not also prevent us from or disqualify us for interacting competently with foreign advisors to our foreign clients, being in-house or outside counsel, and our record in doing it successfully and productively during the years speaks for itself. Sonora is one of the main mining states in Mexico. It is a leader in the production of certain minerals substances, and there is a vast, yet unexplored potential in the field.

Q: Are there any differences between local law in Sonora and federal law?

A:  Mining remains a monopoly of the federal legislature. The Sonoran civil code regulates the temporary occupation of surface land and the granting or imposition of servitude rights for mining purposes. It has been a part of the legal code for almost 15 years now. These rules, however, are not intended to contradict federal law, but only to complement it or to provide for a civil-law based regime regarding those two matters. Whether the above part of the Sonoran civil code is fully constitutional has not been affirmed, though.  For this and other reasons, we advise our clients to preferably adhere and comply with federal law in all matters regarding the temporary occupation of surface land and constitution of servitudes for mining purposes, notwithstanding the intended compatibility of the Sonoran civil code with the federal Mining Law regarding those two institutions.

The expropriation of surface land for mining purposes remains an exclusive province of the federal laws and feasible only in very exceptional circumstances.  Sonora does not also have anything to say or regulate regarding potential conflicts between mining and the oil and gas sector when interests overlap.

Municipal zoning, land use, and construction-permitting regulations also play a role, and usually a material one, in the development of a mining project.

Q: What characterizes Sonora in terms of practical issues for access to land?

A: There is not a big difference, although in other parts of the country one would find more indigenous communities that have to be consulted, especially in the South. Additionally, the concentration of population with a direct interest in the land is simply higher there. Tradition and culture, as well as psychological factors, are different across the country and, in a sense, this is also a factor to be reckoned with. Agrarian Law forms of land tenure and indigenous rights in the form of usages and customs, constitutionally protected, are often mixed in large portions of Southern Mexico. This usually makes the situation there more complicated than the ejido-based agreements in Sonora, where indigenous communities also exist. On a national level, a large part of the land is owned by ejidos, governed by tight and protective regulations, usually not insurmountable with the right advice and protocols, though. Issues of land occupancy and servitude or rights of access for mining uses in respect of privately owned property are generally easier to deal with.

Q: In which areas of the law are clients mostly looking for your advice?

A: We are in the midst of what can be called a stalemate in the mining industry. Investments have diminished in the sector. As a result, our Mining Law work at the moment focuses mainly on the maintenance of mining companies and properties, and on searching for new projects and concessions. There are quite a few mining offers and these mostly interest new players and a number of established companies looking for potentially promising properties.

Since President López Obrador took office, foreign companies have become more cautious. They prefer to wait and see how the country’s political and economic situation is going to play out. Generally, mining concessions whose holders are up to date in the fulfillment of obligations are not being disturbed, but the governmental policy seems to go in the direction of not granting new ones. On the other side, mining has been identified as an important driving force to get the economy running again, as it creates jobs, contributes taxes and provides regional development. The contribution of mining to the federal treasury and to state treasuries in the form of local taxes is not neglectable and this has recently been acknowledged by the Director of the Mining Bureau. This dualism (mining as not necessarily desirable and mining as desirable) has generated the cautious market attitude I am referring to. Among some circles of the new federal administration, it is acknowledged that mining concessions granted and maintained in good status pursuant to the law should be respected, as a sound practice of a government interested in promoting and preserving the rule of law. On the same vein, it is also acknowledged that doing otherwise does not and will not help foster development and growth, to the detriment of the public finances, of the creation of jobs, and of the economy at large.

Tapia, Robles, Cabrera y Moreno is a law firm with strong ties to the mining sector, helping international companies settle in Mexico by providing them with valuable information on the Sonoran landscape.

MBN Staff MBN Staff MBN staff