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Indigenous Consultations: Preventive Strategies, United Front

By Ruben Cano - CR Legal Partners Mexico
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By Ruben Cano | Partner - Mon, 03/14/2022 - 09:00

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Recently, the first Chamber of the Supreme Court of Justice of the Nation delivered its ruling in amparo trial 134/2021, promoted by the Nahua Tecoltemi Indigenous community, located in Ixtacamaxtitlan, Puebla. The court ordered the revocation of two mining concession titles that had been granted in 2003 and 2009 to the company Minera Gorrión (the Mexican subsidiary of Almaden Minerals, Ltd.), with Justice Pardo Rebolledo, as proposer of the ruling, stating that, "the Mexican authorities were obliged to make effective the right to prior, free and informed consultation of Indigenous peoples" and alleging violations by the Mexican state, among others, to articles 6 and 15 of the ILO Convention 169. The Indigenous community also questioned the constitutionality of the Mining Law, but the Court refused to analyze this petition, recognizing its validity.

Convention 169 of the ILO (International Labor Organization) was executed on June 27, 1989, in Geneva and entered into force on Sept. 6, 1991, one year after Norway and Mexico ratified it in their jurisdictions. Its main tool, the Indigenous consultation, is defined as the procedure by which initiatives, proposals for plans and programs, models of public policies and institutional reforms that directly affect them are presented to Indigenous people and communities, with the purpose of obtaining their consent or agreement. Article 6 of the Convention obliges Mexico to carry out “indigenous consultations” in good faith and in a manner appropriate to the circumstances, to reach an agreement or obtain the consent of Indigenous people; but also, it obliges the state to establish the means so that the interested people can participate freely; that is, it is not a self-executing norm, it is required that Mexico clearly define the means, rules and requirements so that said consultation is carried out, a circumstance that has not yet happened.

Article 15 of the Convention dictates that the rights of Indigenous people to the natural resources existing on their lands, including minerals and subsoil resources, even when they belong to the state, must be specially protected, establishing the obligation of Mexico to “establish or maintain procedures” to consult Indigenous people to determine if the interests of these people will be harmed by mining activities, and in any case, proposes that Indigenous people should participate in the benefits of such activities and receive compensation in case of suffering any damage.

If we analyze the Mexican legal system, the Constitution mentions the word "consultation" 13 times, although it only makes indirect reference to the "Indigenous consultation" in article 2, subsection B), when it refers to "self-determination” of Indigenous people and their right to be consulted to define educational programs that recognize their cultural heritage. The current Mining Law only mentions the word "consultation" two times in matters related to the Public Registry of Mining, but it does not establish in any article, nor in its regulation, the performance of any Indigenous consultation as a requirement to request and obtain a mining concession. The LGEEPA (environmental law) establishes a “public consultation” procedure, but not necessarily an Indigenous one, during the authorization process of the environmental impact statement. There is an enacted law for “Popular Consultation” but is not related to the objectives of Convention 169.

The Mexican state has been infringing since 1991 its obligation to establish the means through which Indigenous people can be considered through consultations, but this is not the responsibility of the mining industry, nor of any other industry in the country; the ILO has clearly stressed that “the obligation to guarantee adequate consultation falls clearly and explicitly on governments and not on individuals or private companies.”

We consider the Court's decision as a big and extremely dangerous mistake, since it is worrying that any mining concession granted after the ratification and entry into force of the Convention could be canceled due to the absence of an “Indigenous consultation,” when there are no guidelines, procedures, nor is it clear how the Mexican state can comply with its obligation to consult, affecting the legal certainty of the thousands of holders of mining concessions. Above all, the Mexican state is incapable of even determining who should be considered Indigenous.

According to the INPI (National Institute of Indigenous People) the identification of the Indigenous population is based on three criteria: first, that of Indigenous household (if you live in an Indigenous household); second, ethnolinguistic criteria, that is, a person whose ancestors, even their great-great-grandfather, was a declared speaker of an Indigenous language and third, after March 2021, indigenous communities can be registered as a community before the tax authorities and obtain legal capacity and their taxpayer number (RFC). These criteria are not even consistent or clear, since according to official INEGI data, 12 million people (10.6 percent of the population) live in indigenous households and around 7.4 million people (6.5 percent of the population) are currently identified as Indigenous language speakers. However, almost 25.7 million people (21.5 percent of the population) self-identify as Indigenous. It would be ill-conceived to think that millions of people in Mexico, considering themselves Indigenous, in good or bad faith, could overturn a mining concession granted in accordance with the law just by stating that they were not consulted prior to its granting. This could distort the objective of the “Indigenous consultation” and could turn it into a weapon for extortion.

There is also an apparent partiality with which the different powers in Mexico apply criteria on the performance of the Indigenous consultation. The Mayan Train megaproject will potentially impact more than a million Indigenous people in at least 42 municipalities in the states of Yucatan, Chiapas, Quintana Roo, Tabasco, and Campeche. The Office of the United Nations High Commissioner for Human Rights in Mexico published a report on Dec. 19, 2019, stating that the Mayan Train had not complied with all international standards regarding Indigenous consultation, since they lacked the element of “informed consent,” given that the protocol and the information presented by the government failed to mention the negative impacts that the project could cause. How would the Supreme Court solve an amparo procedure against these omissions?

The modern and responsible mining industry is a leader in generating the greatest social and economic impact in many of the poorest Indigenous communities within our pluricultural nation, but it requires legal certainty to continue its investments and operations. Right now, it is necessary for the mining sector to implement preventive strategies and form a strong and united front to avoid future judicial decisions that could potentially affect the industry. We are happy to talk with you about some options.

Photo by:   Ruben Cano

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