Unconstitutionality Argument Misses the Point on Mining Law

Q: What changes will the COVID-19 pandemic bring to the practice of sustainability?

A: The COVID-19 outbreak will surely alter sustainability as we have come to know it. Social distancing will have to be taken into account in order to evaluate the sustainability of projects. For example, the health authorities in Mexico have decided to restart the economy in municipalities where there are no COVID-19 cases. But things will get complicated when interacting with people from municipalities with cases is needed. Driving forward a sustainability agenda for a mining project requires people relating to each other. Sustainability will now have to include not only environmental provisions but also health provisions with the aim of avoiding contagion. COVID-19 will be a condition with which we will have to live for a long time. How to sort out the hurdles will require much ingenuity. For example, think of a social program in a mining community that consists in producing and selling handicrafts. To sell the handicrafts, producers and buyers need to interact with each other. Health measures will have to be included in the hypothetical handicraft social program. The pandemic means that the relations needed to materialize social projects will be dramatically altered.

Q: Does the fact that indigenous consultation is not included explicitly in Mexico’s Mining Law make this law unconstitutional?

A: The Mining Law does not contradict the Constitution. The fact that it does not include consultation mechanisms for granting concessions is not germane to the issue. However, that is precisely what several NGOs base their argument on. They say concessions are an administrative act that must undergo consultation before it is granted. But there are two reasons why an indigenous consultation is not necessary. One has to do with the nature of a concession. Concessions do not guarantee the exploitation of the minerals underneath the surface. They are merely a permit to explore and exploit the mineral wealth that lies below the ground. They confer upon a private party the duty to pay the state for the right to explore for minerals and, if it comes to that, to exploit the minerals. Nevertheless, it is very important to remember that out of every 100 concessions, just one becomes a mine.

Indigenous consultation applies only when the activities that the private party will undertake will cause a social or environmental disturbance. That moment only comes after the exploration and evaluation of mineral wealth has been undertaken. That often takes years. Once it has been assessed that a mine is viable and a construction decision has been reached, the company needs to obtain an Environmental Impact Permit. That is the moment when an indigenous consultation becomes relevant. Not when the concession is granted.

One has to understand that consultation consists in reaching agreements. That is the essence of ILO Convention 169, to which Mexico is a signatory. Indigenous consultation means undertaking a series of dialogues with the relevant stakeholders to ensure the process is transparent to them. The relevant stakeholders are the communities as such, not NGOs or lawyers. Most of the time, communities want projects to happen as long as the community benefits.

Q: Would it not be beneficial to include indigenous consultation explicitly in the law?

A: Mexico has signed and ratified ILO 169. Therefore, indigenous consultation is already part of the Mexican legal framework. It is not necessary to explicitly include it in a law. If that were the case, every law that affected an indigenous group would have to be altered. You would have to have a consultation before building a road or repairing a water pipe in an indigenous community. All secondary laws in Mexico would have to be reformed. That is not practical.

We must remember that the Constitution was reformed in 2011. The protection of human rights was given a prominent position. The reform clearly indicates that all citizens in Mexico enjoy the protections enunciated in the Constitution and in international legal instruments. Every member of the state’s judicial branch must put the human rights enunciated in the Constitution and international legal instruments first when interpreting any given legal case.

Specifically, Article 6 of the Mining Law is the one which certain entities want to reform. It gives preference to mining activities over other activities. Again, there is nothing unconstitutional about that. In fact, Article 27 of the Constitution says that natural resources like minerals are the property of the nation. That is, Mexico as a nation has preference over any particular group in the use of its natural resources. Reforming Article 6 of the Mining Law would entail changing the Constitution itself. What is very important to understand is that it is not the mining concession that has preference, but the right of Mexico to exploit its mineral wealth. What is legally protected in the Mining Law is Mexico’s right as a nation. This has preference over the interest of private parties, such as indigenous groups.

Q: Is the objection that the Mining Law puts Mexico’s rights to exploit minerals before the human rights of indigenous peoples justified?

A: One has to understand the concept of the nation before being able to discuss that. Mexico as a nation includes all Mexican citizens. Indigenous peoples are Mexican citizens. Therefore, an indigenous Mexican is equally the owner of the nation’s mineral resources. The state is a mediator between its citizens and Mexico’s mineral wealth. As such, the state receives royalties for letting a private party exploit mineral resources on its behalf. The royalties are meant to be used to the benefit of the citizenry, including indigenous peoples.

The Mining Law does not violate human rights. Arguing that it does misses the point. Human rights can certainly be violated later on, if the construction of a project begins without a free and informed consultation in accordance with ILO 169. Then there would be a human rights issue.

Q: What is the ideal balance between strictly legal matters and softer, socially-oriented actions when devising a community strategy?

A: First of all, due diligence assessments must be carried out. There are three big aspects to that: social, environmental and human rights. Project developers have to comply with CNDH recommendation 37, which makes businesses responsible for guaranteeing human rights. The overall goal is to shield the project from social and environmental risks. Due diligence studies must establish, first of all, a stakeholder’s map. Second, they have to pinpoint the key leaders in the community’s decision-making. Only then do we move on to the negotiating process. The goal here is to minimize impacts. There are two kinds of social impacts, real and perceived. The latter are minimized with information. It is a legal requirement to do so. Mining companies must make sure they are respecting the right to information and participation. Negative real impacts are minimized by means of social and environmental management plans, informed by international best practices. Legal provisions that must be fulfilled or softer, purely social actions need to be fulfilled to minimize real and perceived impacts.

It is very important in community relations to document every agreement that is reached during the negotiation process. Moreover, negotiations must be undertaken publicly and be publicized. Leaders must accept the agreements and collaborate with the project.

Q: How important is having a comprehensive communication strategy for bringing mining projects to fruition?

A: Communication is crucial — both internal and external communication. The former includes company workers and communities of influence. It has to go beyond merely providing information; rather, it has to be a constant, open, dialogue. Communities must participate in the process for determining their own social needs and obligations. External communications have to do with the media. It is extremely important to initiate and sustain communication processes as soon as the project has reached a sufficient level of maturity. Once the communities have approved it, community members and other internal stakeholders need to speak up and let the media know why they want the project. Too often, only those who are against projects speak. Also, by means of media communications, the project lets investors know that it is solid and that risk is reduced. Good mineral resources may be of no use if there is not a social agreement to operate. A broad communications policy is of utmost importance. It has to be done, however, once all agreements are in place; if done prematurely, it can be counterproductive.