Pablo Méndez Alvidrez
Managing Partner
EC Rubio
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Expert Contributor

New Jurisprudential Criteria in Mining Matters

By Pablo Méndez | Mon, 07/11/2022 - 16:00

The first half of 2022 has brought a considerable number of changes in the Mining Law. Perhaps the most emblematic and substantial of these changes is the recent Mining Law amendment that reserves lithium exploitation and use exclusively in favor of the Mexican state.                                                                                                                            

Nevertheless, even more recently and with an equally high level of importance, on Friday, June 3, a series of jurisprudential criteria were published as binding precedents adopted by the First Chamber of the Mexican Supreme Court, all related to mining matters and all derived from the amparo action number 134/2021, filed by the Tecoltemi Ejido Community. The following is a synthesis of the recently issued jurisprudential criteria that have a direct impact on Mexican mining, as well as their implications for the industry.

Background

As I mentioned, the jurisprudences that will be analyzed arise from the amparo action number 134/2021, filed by the Tecoltemi Ejido Community, by means of which the community claimed the unconstitutionality of the Mining Law for considering that such law violates their human rights to use their lands, as well as for failing to comply with the international obligations derived from Convention 169 of the International Labor Organization, regarding the right to prior, free and informed consultation of Indigenous communities.

Jurisprudences

  1. Right of Indigenous communities to the use the lands they inhabit and its natural resources

Pursuant to this jurisprudence, the Court established that the Mining Law does not violate the right of Indigenous communities to the use of the lands they inhabit and the natural resources found there.

This decision was justified after an analysis in which it was determined that the land ownership rights of the Indigenous communities foreseen in Article 2 of the Mexican Constitution is not opposed to the state's powers to grant mining concessions, since this regime, foreseen in Article 27 of the Constitution, allows the state to benefit from mining resources according to the necessary modalities and mechanisms, as long as the cases in which the rights of the Indigenous communities are respected and their right to participate in the process of granting mining concession titles is guaranteed.

  1. Prior Consultation

One of the several issues analyzed in the aforementioned amparo action, and which have also been addressed in previous articles, is related to the procedure for Indigenous communities’ consultations that must be held prior to the granting of mining concessions. This particular topic is addressed by the jurisprudence criteria numbers 2024740 and 2024741.

In the amparo action ruling, the Supreme Court considered that, indeed, the Mexican authorities are compelled to carry out prior, free, and informed consultation with Indigenous communities through the appropriate procedures. Therefore, although the Mining Law or any other Mexican law does not provide the mechanisms to perform the consultation, such omission does not exempt the Mexican authorities from carrying out such consultation prior to granting new mining concessions through processes that guarantee respect for the human rights of the Indigenous communities.

  1. No requirement for prior consultation during the legislative process of the Mining Law

In the amparo action here identified, the Ejido community claimed that no prior consultation was held with Indigenous communities during the legislative process held to issue the Mining Law.

Regarding this matter, the Supreme Court established that it was not required nor mandatory for the legislative authority to carry out a consultation procedure with the Indigenous communities prior to the issuance of the Mining Law, since even though the application of such law might affect the interests and rights of such communities, its main purpose is primarily to regulate the mining industry in general and the acts of said industry.

Implications

As stated in past columns, the Mexican legislative authority has been omissive in the regulation of the right of Indigenous communities to prior and informed consultations in the mining industry and, for many years, it has been indebted to such communities for the lack of protection of their human rights.

However, the new jurisprudential criteria adopted by the First Chamber of the Mexican Supreme Court have brought with them an express recognition of the right of Indigenous peoples to carry out prior and informed consultations prior to the issuance of new mining concessions.

Although it is correct to state that these new jurisprudential criteria are a significant advance in the protection of Indigenous communities’ human rights, it is also true that said criteria bring with them certain risks and uncertainty for both the mining industry and the Indigenous communities. The aforesaid since:

a)  As mentioned in previous columns, there is no regulation that expressly establishes a process for the execution of a prior and informed consultation that protects Indigenous communities’ human rights, which leaves the procedure to be executed at the sole discretion of the Mexican authorities, especially the General Mining Bureau.

b) There is no law or regulation that establishes the specific characteristics that determine whether a community is Indigenous or not, so the classification of such communities will be performed at the discretion of the Mexican authorities and, consequently, the execution of prior consultations would again be at the will of such authorities, especially the sole discretion of the General Mining Bureau.

c) These new criteria open the possibility that mining concessions granted prior to the publication of these new criteria may be nullified, since no prior and informed consultation was executed prior to their issuance.

Undoubtedly, of special relevance is how the legislative text adjusts to the Supreme Court's ruling, since as of today, there is no express procedure to execute a prior consultation in the Mexican legislation, which undoubtedly strengthens the uncertainty that has been mentioned and may even result in delicate responsibilities for the Mexican state, in the event that the General Mining Bureau decides to nullify mining concessions previously granted.