What Does the Supreme Court Say About Prior Consultation?

On June 3, the Seminario Judicial de la Federación (Judicial Weekly of the Federation) published seven jurisprudential theses related to the Prior Consultation of Indigenous Peoples, derived from the lawsuit initiated by the Ejidal Commissariat of Tecoltemi with direct incidence on the mining concessions[1].

Briefly recall that Minera Gorrión, SA de CV, a subsidiary of Almaden Minerals, obtained its mining concessions at the beginning of this century and it was not until the middle of the last decade that the community of Tecoltemi initiated its lawsuits.

The issue prompts many reflections but let's start with the basics: What was published in the Judicial Weekly of the Federation?

1. The thesis with registration number 2024741 mentions that there is NO violation of the rights of indigenous peoples and communities, even though the Mining Law does not provide for Prior Consultation, since the Authorities are obliged to carry it out by virtue of the Constitutional text and Convention 169 of the International Labor Organization.
2. Thesis number 2024740 states that the Ministry of Economy is obliged to comply with the Indigenous Consultation when issuing mining concession titles.
3. Thesis number 2024739 establishes that Congress was not required to carry out an Indigenous Consultation prior to the mining expedition.
4. Thesis 2024738 indicates that the challenge of an entire law should not be confused with its formal constitutionality, since it is understood that the complainant must limit himself to the acts that he claims cause him injury.
5. Thesis 2024737 determines that articles 6, 10, 15 and 19 of the Mining Law do not violate the right of Indigenous communities to dispose of, use and enjoy their territory and the natural resources found there, since article 27 of the Constitution is clear regarding the power of the Mexican state to exploit mineral resources.
6. Indigenous self-ascription is addressed in the thesis with registry number 2024732, where it is established that it is not necessary to prove through official documents that there is a previous recognition of the Indigenous condition.
7. The thesis with Registration No. 2024730 establishes that when, in the amparo petition, the will of the complainant to combat the omission of the Congress in the fulfillment of its obligations is not evident, the judge cannot carry out the study of the omission.
8. Finally, the thesis with registration number 2024729 states that there is no legislative omission when the obligation to legislate is issued after the issuance of the legal norm that is being attacked.

In summary and extending the vision to the consequences of the process of granting new concessions, the criteria issued will oblige mining companies to carry out social studies that identify the presence of Indigenous communities prior to applying for mining concessions.

Even so, the studies presented by the mining sector will be questioned, as is the case with the environmental impact assessments that the Ministry of the Environment (SEMARNAT) evaluates and, if necessary, authorizes.

Notwithstanding the above, it is estimated that conflicts will continue to arise, given the ambiguity that still prevails regarding the concepts of Indigenous people and communities.

Perhaps the solution has to do with the paradigm of converting landowners into partners in the mining project, regardless of whether they are Indigenous or not.

Even so, convincing the alleged partners that exploration projects are very uncertain will be a major challenge.

It seems that not even the Supreme Court wants to understand the dynamics of mining investment. A company that does exploration is unlikely to turn its findings into a productive project.

The Mexican Chamber of Mines itself recognizes that out of every thousand locations with indications of mineralization, only 100 are susceptible to exploration and, of these, only 10 reach advanced exploration, while only one reaches the production stage.

To pretend to explain to a community, Indigenous or not, concisely the type of environmental impacts from a project for which the existence of a viable deposit has not yet been confirmed as well as the mechanisms to avoid, diminish and compensate for the potential impact, is very speculative when one is only trying to apply for a concession.

[1] SCJN, 2022. Semanario Judicial de Federación 1ª Primera Sala, publicación del viernes 03 de junio de 2022:

https://sjf.scjn.gob.mx/SJFSem/Paginas/DetalleGeneralV2.aspx?ID=2024741&Clase=DetalleTesisBL