Jesus Enrique Pablo-Dorantes
Chaiman of the Advisory Board
AMIA (Mexican Academy of Environmental Impact)
Expert Contributor

Mining and the Lack of Legal Certainty ... Again

By Jesús Enrique Pablo-Dorantes | Wed, 04/28/2021 - 09:16

On April 15, during President Andrés Manuel López Obrador’s morning conference (from 02h:32’:30” to 02h:45’40” on the video) he responded to a request for help for a group of people from the state of Colima. The question was raised by a self-described independent reporter. The president made reference to the Minera y Metalúrgica de El Boleo, SAPI de C.V. (MMB), located in the Santa Rosalia, Mulege municipality in Baja California Sur (BCS).

The mention was as follows: "... the instruction is not to give permissions, they were asking us for a permit recently for the El Boleo mine, in Baja California Sur, which is already going to close and they wanted a permit for 300, 400 hectares and I told them, no, we can no longer continue to deliver concessions.” The announcement was surprising in many ways.

First, a review of the publication Gaceta Ecológica published by the Ministry of Environment and Natural Resources (SEMARNAT), as well as the portal "Consult your procedure," shows that the so-called Proyecto de Ampliación de Explotación Minera El Boleo, with procedure number 03BS2019M0010, is still in the evaluation process, having now exceeded 600 calendar days in the process. Let us remember that, according to the Regulation of the General Law of Ecological Balance and Environmental Protection, Regarding Environmental Impact Assessment (REIA), the procedure should not exceed 180 business days, equivalent to about nine months.

Second, in terms of legal certainty for the governed, it is unacceptable for either MMB or the interest groups involved to learn of responses to legal proceedings from a televised conference rather than through the channels indicated by Mexican environmental regulation. In this regard, there are instances where official documents have been leaked to anti-mining groups on non-working days for SEMARNAT, considerably affecting the price of the shares of the mining companies involved.

Anecdotally, Consorcio Minero Benito Juárez Peña Colorada SA de CV received an authorization for a Unified Technical Deliberation for the Change of Forest Land Usage on Oct. 18, 2019, after just 93 business days. Compare that with an evaluation procedure of an Environmental Impact Statement in Regional modality that has been under evaluation for more than 20 months.

It is fair to point out that on April 18, the Ministry of Economy (SE) issued a bulletin in which it specified that MMB has not requested new concessions and that SEMARNAT has not yet issued its resolution regarding the expansion of works and activities requested in 2019.

The SE Bulletin also indicates that MMB is the direct source of employment for 1,282 people, which implies that it employs three out of every 10 people in Santa Rosalia, the municipal seat of Mulege. To the above, we can add that:

  1. MMB is located within the El Vizcaino Biosphere Reserve (RBEV).
  2. The authorization that allowed its entry into operation comes from November 2006, when there was already a Management Program for the RBEV.
  3. This authorization is a great example that reliably demonstrates how mining can not only coexist with Protected Natural Areas (ANP), but also contribute to its conservation, since MMB's activity was possible thanks to a clear understanding of the region's antecedents and the application of a land usage planning model.
  4. As part of the Environmental Guarantee offered to SEMARNAT to meet the conditions of the 2006 authorization, MMB offered shares to the National Commission of Protected Natural Areas (CONANP), which served to finance protection programs in RBEV, where we find flag species such as the gray whale, the pronghorn and bighorn sheep.
  5. According to the governor of BCS, in fiscal year 2019, MMB paid MX$299,772,000 (US$15 million) in Value Added Tax.
  6. In summary, the importance of MMB in economic terms to the state of BCS and what it implies for the conservation of RBEV is significant, so its interest in expanding the productive area within the concession area should serve to consolidate this great example of mining in the 21st century.

Although the president’s morning conferences have been strongly criticized for their use of questionable data, what happened on April 15 represents yet another attack against productive investment. We should also recognize the effort of Minister of Economy Tatiana Clouthier to correct her boss, which is something we never saw from the short-lived Undersecretariat of Mining.

Finally, it would not be amiss to recommend to CAMIMEX the convenience of sending an invitation the Ministry of the Environment and Natural Resources and SEMARNAT to adequately inform the president regarding mining affairs.