Missing Indigenous Consultation Rules May Hinder Mining: Experts

Recent changes in mining laws, such as the 2023 Mining Law reform, have raised concerns due to the absence of regulations concerning indigenous consultations. Legal experts suggest that missing regulation could pose future challenges for mining companies since without the approval of indigenous communities the future of any mining project is at risk.

Mexico recognizes the indigenous peoples' right to a fair and transparent consultation, as outlined in Art. 2, Section B of the Constitution and as per the International Labour Organization's (ILO) Convention 169. Despite this, legal experts believe that Mexico is not yet prepared to implement indigenous consultations due to a lack of necessary mechanisms. "Firstly, there is no regulatory law for Constitutional Art. 2. This means that while the constitution establishes the right, it does not provide the mechanisms needed to apply this law,” Alberto Vazquez, Founding Partner, Tête à Tête Abogados told MBN. 

According to 2023’s Mining Law reform, in the case of plots located in territories of indigenous or Afro-Mexican peoples or communities, the Ministry of Economy (SE), for the granting of mining concession or assignment, shall request the competent authority to carry out the consultation to obtain the consent of these communities and shall participate in the process within the scope of its powers. The consultation shall be conducted before the granting of the concession title and simultaneously with the one required for the environmental impact statement, in which information on the social impact study shall be provided. 

Vázquez emphasizes that the Mexican legal framework also lacks the mechanism to determine who can be considered an indigenous person. "The consultation must be free and informed, but how can we ensure that the information presented to communities will be accurate? This is particularly important given the growing misinformation and prejudices surrounding the mining industry," he added.

In the past, PT Deputy Mary Carmen Bernal called for the integration of indigenous consultation into the Mining Law, highlighting that the absence of regulations has created uncertainty for both communities and companies. Similarly, Vázquez noted that the lack of regulation regarding consultation processes has allowed authorities to use it as an excuse to halt mining projects.

Mining Law Reform Temporarily Suspended 

On March 8, the Supreme Court (SCJN) published a binding ruling questioning 25 aspects of reforms to laws governing Mining, National Waters, General Ecological Equilibrium, and Waste Management. In addition, it granted a temporary suspension to protect the rights of companies with active concessions, as reported by MBN. SCJN is poised to assess the legality of these reforms amid claims of procedural violations. "Social impact and indigenous consultation are already a reality within the mining industry, whether there is a Mining Law or not. The issue is the absence of specific laws on these matters," Vázquez added.