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Not All Is Lost After Court Decision on Mining Concessions

By Mariano Calderón | Thu, 03/31/2022 - 11:00

Earlier this year, the Mexican Supreme Court (SCJN) reviewed, analyzed and resolved an amparo trial (constitutional proceeding) where the Indigenous community of Tecoltemi challenged certain provisions of the Mining Law and certain concessions granted in favor of a mining company[1]. The main argument of the plaintiffs was that the Mining Law is unconstitutional because it fails to incorporate into its provisions the need to perform a free and informed consultation prior to granting any mining concession. The SCJN declared that the Mining Law is constitutional.

 

The plaintiffs challenged the constitutionality of several provisions of the Mining Law[2], arguing that the Ministry of Economy could grant mining concessions without taking into consideration the right of Indigenous communities to enjoy and benefit from their land and territories and, foremost, the need to obtain their free and informed consent prior to authorizing any act that might affect them.

In the first instance of the trial, a federal district judge ruled in favor of the plaintiffs, considering that there was a legislative omission, by failing to incorporate into the Mining Law the need to perform a free and informed consultation proceeding before granting any mining concession. In the opinion of the judge, the Mexican Congress was obliged to reform the Mining Law as a consequence of a Constitutional amendment in 2001 to its Article 2 and the obligations upon the Mexican state derived from the approval of Convention 169 of the International Labor Organization (Convention 169)[3]. The judge declared the unconstitutionality of the challenged provisions of the Mining Law because they did not establish the right to a free and informed consultation as a mechanism to protect the Indigenous communities concerning their land and territories in connection with mining activities. The Mining Law was enacted in 1992 and the Mexican Congress did not pass any amendment to incorporate said obligation.

Through an appeal for review, the SCJN analyzed the case and resolved the two issues at trial: (i) whether the Mining Law is unconstitutional or not, and (ii) whether two mining concessions granted to a private enterprise should be canceled or not.

In the first matter, the SCJN revoked the district judge’s resolution and declared that the Mining Law is not unconstitutional. The SCJN considered that the judge erred in his analysis because the plaintiffs did not challenge an “absolute omission” from Congress, but instead a “relative” one, referred only to the Mining Law. Further, the SCJN ruled that there was no violation of Convention 169 because the Mining Law was enacted without a prior consultation proceeding. The Court stated that such a requirement applies only to those laws that directly refer to and control any aspect related to the social, economic, or political life of the indigenous communities, which is not the case of the Mining Law. The SCJN ruled that the provisions of the Mining Law refer to general aspects of mining activity, the rights derived from the concessions, the proceeding to grant the same, and the attributions of the authorities, but said law has no direct link with the interests and rights of the Indigenous groups[4].

In addition, the SCJN ruled that the Mining Law is not unconstitutional, despite the fact that it does not require a free and informed consultation proceeding prior to granting any mining concession. In the opinion of the Court, that requirement derives directly from Article 2 of the Federal Constitution and Convention 169 and, therefore, all the authorities are bound to consult the Indigenous communities prior to adopting any action that directly affects their interests and rights. The Court concluded that said obligation and requirement should not be interpreted in extremis, to consider that all the Mexican Laws must replicate, contain and regulate the right to a free and informed consultation. Otherwise, if the plaintiffs’ arguments were right, all the laws of the country would be unconstitutional by not incorporating the right to the consultations of Indigenous groups. 

Regarding the second issue at trial, the SCJN ruled in favor of the plaintiffs, to the extent that the two mining concessions were granted without a prior consultation proceeding. In the opinion of the SCJN, the granting of mining concessions within the territories of Indigenous communities directly and immediately affects them because said concessions entitle its recipients several rights over the land covered by the concessions and the natural resources contained therein. The SCJN ruled that the indigenous communities are affected by the sole emission of the concession and not only when the mining activities initiate or are actually performed. Therefore, the SCJN concluded that the Ministry of Economy must conduct a free and informed consultation proceeding prior to granting any mining concession.

Despite the fact that the SCJN’s resolution is perceived as a cause of uncertainty regarding the validity of mining concessions and as a dangerous precedent, it upholds the constitutionality of the Mining Law. This is important because it would deter further challenges to the same. The Court made it clear that the requirement to incorporate provisions related to the free and informed consultations of Indigenous groups should not be interpreted in extremis, to consider that all the Mexican Laws must replicate, contain and regulate the right to a free and informed consultation. The fact that the Mining Law is constitutional might be used as a procedural hurdle in future amparo trials. In addition, the cancellation of the mining concessions declared by the SCJN was not absolute. The Court ordered the Ministry of Economy to cancel those concessions and reissue them considering its obligation to conduct the proceeding of a free and informed consultation of the Indigenous community.   

 

[1] Amparo en revisión 134/2021, First Chamber of the SCJN.

[2] Articles 6, first paragraph; 10, second and fourth paragraphs, 15 and 19, sections I, II, IV, V, VI and VIII of the Mining Law.

[3] Indigenous and Tribal Peoples Convention 1989 (No. 169). Adopted on June 27, 1989 by the General Conference of the International Labour Organization at its seventy-sixth session.

[4] The Second Chamber of the SCJN issued a similar criterion on January 2021.

Photo by:   Mariano Calderón