Uncertainty Regarding Indigenous Consultation Remains

After the cancellation of Almaden Minerals’ concessions due to the lack of Indigenous consultation, the need for the government to issue a formal framework has been further raised. For years, the industry has demanded clear guidelines and although the government is already working on a draft, experts say that the lack of specific dates for the application of a formal regulation continue to generate uncertainty.

“As long as the consultation right is not properly regulated within the procedure for granting mining concessions, mining companies and the mining authority will never be fully able to comply with these obligations,” said Pablo Méndez Alvídrez, President, CLUMIN.

In February, the Supreme Court of Justice ordered the Ministry of Economy to declare Almaden’s mining concessions void and reissue them until the Ministry fulfills its obligation to consult the Tecoltemi ejido. The decision of the SCJN has caused much controversy mainly for two reasons. First, although it was the responsibility of the government to carry out the consultation, the mining company was the one affected and second, there are no guidelines for carrying out these consultations, which makes their approval arbitrary.

To date, the right to prior consultation in Mexico is established in Art. 2 of the Mexican Constitution and in international treaties that the country has ratified, such as Convention 169 of the International Labor Organization and the United Nations Declaration on the Rights of Indigenous Peoples. Although the subject is addressed in these documents, the country has not yet issued a formal Indigenous Consultation Law to establish strict and clear rules on how to carry out indigenous consultations.

Flor María Harp, Director, Mexico’s Geological Survey, said the government has sought to make it a rule to carry out indigenous consultation before granting a concession. “Unfortunately, there are no legal parameters to carry out this consultation at this time in our country. Trials have been made but since no concessions are being given, these trials have not advanced enough,” said Harp at Mexico Mining Forum.

In addition, there are problems in determining who should be considered as Indigenous, making the situation harder to address. Inaccurate knowledge of who are Indigenous not only affects people’s rights when they need to be consulted, but also opens the possibility for someone to say they are Indigenous and use it as a weapon for extortion, said  Ruben Cano, Founding Partner, CR Legal Partners Mexico.

Arbitrariness also remains in the government's criteria when deciding what constitutes a good indigenous consultation, according to Cano. One example is the Mayan Train, one of López Obrador's main projects, which will potentially impact more than a million Indigenous people. The project has been target to many protests and lawsuits. However, as it is endorsed by the government, it has not been suspended.

López Obrador and other authorities have constantly accused the mining sector of not wanting to carry out consultations, saying that companies do not care about the communities. Meanwhile, CAMIMEX has highlighted that mining is one of the industries that most contributes to the development of communities in Mexico, especially those that are marginalized. “Companies that are part of the chamber are not opposed to the consultations,” the chamber stated. However, the fact that there are no fixed dates for their application generates speculation in the sector and communities.

In 2021, due to the growing importance of ESG matters, as well as the demand for Indigenous consultation frameworks, the Chamber of Deputies approved the “General Law for the Consultation of Indigenous and Afro-Mexican Peoples and Communities.” The decree was sent to the Senate and is currently being discussed. If approved, there would finally be a formal framework to consult mining decisions with Indigenous communities that affect their lands, territories and natural resources.

Alfonso Caso, Managing Partner, AOSENUMA, told MBN it is extremely important to have an updated diagnosis of Indigenous consultation rights for projects that are already operating in Mexico and to evaluate the feasibility of new projects to be incorporated into the new framework. “The legal and administrative framework should focus on building a mutual understanding between Indigenous people and private and public actors to promote long-term relationships that facilitate the development of projects and investments to overcome the socio-political uncertainty that Mexico has faced throughout the years,” said Caso.

Experts argue that even though the government has been discussing the issue since last year, no progress has been made. As a result, no changes are expected in the short term. “We are in the same place we were two years ago or more; there is a lack of legislation. To the best of my knowledge, only the energy sector has established in its provisions how indigenous consultations are carried out at a federal level. In the mining sector, there are no such provisions, which paves the way for abuse by mining opponents. Anyone can claim that right and stop any project,” said Alberto Vazquez, Partner, VHG Servicios Legales.