SCJN Grants First Amparo Against the Mining Law Reform

The Supreme Court (SCJN) granted the first amparo against the 2023 mining law reform, promoted by former President López Obrador and approved through a fast-track process amid criticism from the industry and opposition lawmakers. This ruling marks a significant development in ongoing legal challenges against the reform, which has drawn scrutiny for its impact on mining concessions and exploration rights.

The court's second chamber voted three to two to declare unconstitutional the fifth transitory article of the reform, which mandated the Ministry of Economy (SE) to dismiss new exploration and production concession requests without further processing, according to a report by the newspaper Reforma.

Judges Javier Láynez, Luis María Aguilar, and Alberto Pérez Dayán ruled that the article is retroactive and therefore unconstitutional. According to the ruling, the plaintiff, Emiliano Ruiz Hernández, has the right to have his request processed following the regulations in place when it was submitted in October 2019. The ruling notes the contested transitory article unjustifiably orders that these requests be dismissed without further processing, violating the non-retroactivity principle of the law. 

Judge Lenia Batres, who voted against the amparo alongside Yasmín Esquivel, criticized those in favor, reminding them that the court's plenary session still has a pending constitutional challenge that could invalidate the entire reform. 

According to Alberto Vazquez, Founding Partner, Tête à Tête Abogados, the amparo could set a precedent for similar cases. He advised companies with pending amparos not to submit new expert reports or revisions to requests previously required by authorities.  "While the amparo is granted, the SCJN's ability to declare the unconstitutionality of the decree is still questioned,” he added.

Mining Law Reform and Other Legal Challenges

Since the new mining reform was published in the Federation Official Gazette (DOF) in May 2023, numerous mining companies have challenged various aspects of the new law. While some courts issued preliminary rulings, SJCN ordered a temporary halt on judicial proceedings against the reform to prevent conflicting decisions.

The Mining Law proposed the reduction of the duration of mining concessions from a maximum of 100 to 80 years. The text also establishes that exploration is reserved for the State through the Mexican Geological Survey (SGM) or assignments to entities of the federal public administration. However, no clear guidelines have been established for its enforcement to date, this has spurred criticism among industry insiders, as it adds another layer of uncertainty. “These legal gaps hindered our progress. While we understand the importance of adhering to new norms, we cannot do so without knowing how to comply,” said José Jabalera, Vice President of Sustainability, Discovery Silver, during Mexico Mining Forum 2024. 

Another challenge the industry must address is the Judicial reform, published on Sept. 15, 2024. According to experts, the popular election of judges by direct vote could lead them to make decisions based on ideology rather than law. “Since judges and magistrates handle industry cases, there is a risk of biased rulings. Therefore, we must protect ourselves as much as possible,” said Andrés Pérez-Howlet, Partner, Molina, Hanff & Pérez-Howlet.