Supreme Court Leaves Amparo Against Mining Law UnresolvedBy MBN Staff | Tue, 05/19/2020 - 19:06
Minister Javier Laynez of Mexico’s Supreme Court decided to withdraw his project to rule against an appeal filed by indigenous communities in Puebla. The appeal asked the Supreme Court to revise the constitutionality of Mexico’s Mining Law.
Mexican civil society had voiced concerns respecting Minister Laynez’s project. The Mexican Center for Environmental Law (CEMDA) sent the Supreme Court a letter, summarizing the case’s history and underscoring that what is at stake is whether Mexico’s Mining Law is at odds with the Constitution. CEMDA points out that in 2014, members of a Maseual indigenous community started a legal process for challenging three concessions to exploit the mineral wealth lying underneath their lands. An appeal was presented to a state court in Puebla, alleging the unconstitutionality of the Mining Law, as well as the violation of the indigenous community’s rights to self-determination and control of their natural resources. The main piece of the argument was the lack of prior, free and informed consultation in the issuance of the Mining Law and in the granting of the particular concessions.
CEMDA goes on to explain that in 2018 the Puebla court sentenced that on the issue of the Mining Law’s constitutionality, the communities had not verified their legitimate interest. On the other hand, the court ruled in favor of the Maseual community regarding the mining concessions, which were canceled. Subsequently, the community decided to appeal the unfavorable part of the sentence, taking the case to the Supreme Court.
CEMDA’s main point against Minister Laynez’s project regarding the Maseual community’s appeal is that the former affirms, unwarrantably, that the content of the Mining Law is not directly linked to the interests and rights of the indigenous groups involved. In opposition to this, CEMDA argues that there are numerous examples of indigenous peoples having seen their territories, ways of life and human rights negatively affected by administrative acts based on the Mining Law. Finally, CEMDA states that the granting of mining concessions in indigenous territories is unconstitutional if it has not been preceded by a free, prior and informed consultation to the indigenous communities about the impact that mining activities entail.
The background of the issue leading to Minister Laynez’s contested project is related to two facts. First, the paramount status of human rights in Mexico’s constitution. Second, Mexico is a signatory of the International Labor Organization’s (ILO) Convention 169, which entails consulting with indigenous peoples before undertaking a mining project on their lands. In an interview with Mexico Business News, environmental law expert Gabino Fraga explains: “In 2011, Mexico changed its constitution, making it pro homine. That is a legal principle saying that juridical interpretation should always benefit the human individual. When assessing a case, the judge should apply the law that brings the greatest protection to the individual. Moreover, all international treaties that Mexico signs and ratifies have constitutional status. Therefore, if a judge is considering whether to apply an article in the Mexican penal code or an international treaty signed at the Hague, he will choose the latter if it protects an individual’s human rights. In 1991, Mexico signed ILO Convention 169. Hence, it is important that we implement it through clear protocols.”
However, some legal experts argue that it is not right to say that Mexico is overdue on the implementation of ILO Convention 169. In a conversation with Mexico Business News, attorney Alberto Vázquez explains that the Mining Law “not only takes indigenous communities into account but gives them a right of preference.” He goes on to say that “if a company wishes to apply for a mining concession on the lands of an indigenous or agrarian community, the latter is favored by the law. Although the normal procedure is a lottery and anyone can submit an application if the community that owns the land applies for a concession, then the lottery is stopped and the concession goes to the community. Therefore, it is misleading to say that mining law does not consider indigenous and agrarian communities. What is important to flesh out is the difference between there being some indigenous individuals on the land and there being an actual indigenous community. Indigenous individuals are everywhere in Mexico. But this does not mean that there is a community, which has to be clearly defined and recognized by a third party. ILO Convention 169 is sufficiently integrated into Mexican law. It is not a matter of changing regulations, but of enforcing existing ones.”
Even if ILO Convention 169 has been partially integrated into the Mining Law, there remains room for improvement. For instance, the sequence of the consultation process is a source of confusion. Civil society organizations have proposed that consultations be undertaken before the start of exploration activities. That would be suboptimal, as it is necessary to know how a project will be developed to evaluate its social and environmental impact. As Joel González, partner at ALN Abogados, notes “authorities need to understand how the industry works. In other countries legislators, stakeholders, companies and chambers work together to define clear regulations that provide certainty for project development. Consultations on projects that lack development knowledge and information discourage investment.”
The crucial matter is that Mexico fully incorporates international treaties and best practices in a way that encourages investment and provides legal certainty. Cases like the one Minister Laynez has on his desk can be avoided with clearer rules. This would benefit all stakeholders, ultimately bringing sustainable, inclusive and respectful development to Mexico’s most vulnerable citizens.