On Jan. 13, the Second Chamber of the Supreme Court of Justice of the Nation resolved the amparo under review 928/2019, promoted by representatives of the Maseual, or Nahua indigenous people, who live in the northern highlands of the state of Puebla, against the Legislative and Executive branches of the Mexican nation.
In the court's decision, it was ratified that, in accordance with the Political Constitution of the United Mexican States and Convention 169 on Indigenous and Tribal Peoples in Independent Countries of the International Labor Organization, all Mexican authorities, within the scope of their respective competence, are obliged to consult indigenous peoples and communities before adopting any action or measure likely to affect their rights and interests.
It also resolved that the Mining Law is not unconstitutional because it does not provide for said consultation, since the obligation to do so is provided for in the Constitution and through an international agreement and, therefore, it applies to all matters, including, without a doubt, mining. Without it being necessary that each law has to provide or regulate it, subjecting the mandatory nature of the consultation to its recognition in a secondary law would be to reduce it to a normative text of a lower hierarchy.
It is important to note that previously, when resolving other matters, the Second Chamber had already decided that the Congress of the Union has the obligation to issue a law that regulates the right to indigenous consultation. The aim is to grant legal security to all the governed and, above all, to indigenous groups and communities in terms of the stages, characteristics and other general aspects that must be satisfied when carrying out said procedures, regardless of the subject matter of the consultation, whether it relates to mining, ecological issues, health or other matters.
The resolution highlights that, considering the jurisdiction of the Second Chamber, only the arguments presented against the challenged norms were examined, without at some point being analyzed. Nor was there a pronouncement on the legality of the mining concession titles that were also challenged, whose legality will be analyzed and resolved, in due course, by the collegiate circuit court in Puebla.
Unfortunately, this does not resolve the main issue, relative to the lack of an Indigenous Consultation Law or some administrative laws that would provide certainty to investment in the mining sector.
In this sense, it is indisputable that prior consultation is required, but when should it be executed? One requirement is that such consultation be prior and informed, among other requirements. Thus, how can one speak of the possible effects on the resident indigenous population if, in the exploration stage, there is still no certainty that there is even an economically viable deposit?
Furthermore, the quantity of the mineable deposit varies depending on the price at which the metal that can be extracted is traded and the probable grade, which also directly impacts economic feasibility.
Nor should we forget about the metallurgy or mineralogy of the deposit, since the profitability of the project also varies depending on the ease with which the benefit can be carried out and the activities that may be required in the presence of potentially significant acid drainage generation.
Thus, there are several elements that need to be synchronized to enable the development of the project and that define the environmental and social impacts that must be identified, ranked, prevented, mitigated and compensated. Only in this way can the possible implications be explained to the indigenous communities that are within the environmental system in which the project is immersed.
It is then necessary to reconsider the convenience of returning to the old regime of mining concessions, which were divided for exploration or production. Thus, only the concession for production would require consultation because exploration commonly does not generate significant impacts on the environment.
An alternative route that is still disruptive in the Mexican experience is to rethink the negotiation process and make it possible for indigenous communities to have shares in the company that wants to develop the project. In this way, it is even easier to obtain a concession since the Mining Law gives preference to indigenous communities when granting concessions over the interests of any private company.
Despite these considerations, on the second day after the Supreme Court's decision was released, the Ministry of Environment and Natural Resources (SEMARNAT) issued its Press Release No. 07/21, in which it openly stated that it did not agree with the criteria expressed by the Judicial Branch of the Federation and insisted that the current concession system does not contemplate the duty to consult indigenous peoples when their rights may be affected.
What is next, then? A SEMARNAT that speaks on issues that are not within its competence? A SEMARNAT that, when it does not deny environmental authorization, applies the condition that mining projects must ask the competent authority in the state in which it intends to develop the project, in coordination with the National Institute of Indigenous Peoples (INPI), to establish if there is an indigenous population and if it is necessary to carry out the Indigenous Consultation?
Given this scenario, a more active and supportive participation of the mining sector is required, perhaps led by the Mexican Mining Chamber (CAMIMEX). This should be focused on explaining to SEMARNAT, in even more detail, the benefits of this activity and the technological advances that make it possible to prevent damage to the environment and the health of neighboring populations.