Karina Rodríguez Matus
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Rodríguez, Matus & Feregrino
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Should Mining Be Allowed in Protected Natural Areas?

By Karina Rodríguez Matus | Mon, 05/03/2021 - 13:46

During the past few years, different government levels, including the legislative branch, have tended to ban all mining activities in Protected Natural Areas (PNAs), alleging activity incompatibility and protection criteria. In our opinion, however, such bans, as implemented, are not necessary and only discourage the development of productive activities to the detriment of the PNAs themselves, which require the generation of resources locally for their own sustainability and conservation. In fact, the federal government does not have the financial resources required to care for declared PNAs.

In our opinion, the strict prohibition of mining activities in PNAs is not necessary. Current regulations, both in terms of PNAs and mining, contain instruments that protect the goals pursued by the creation of PNAs and balance economic and productive elements that allow PNAs and their inhabitants to survive, as provided under the General Law of Ecological Balance and Environmental Protection (EPL).

To establish and manage PNAs, in terms of the provisions of the EPL, the land that comprises them is identified and delimitated in divisions and subdivision according to the biological, physical and socioeconomic elements. Additionally, a territorial delimitation of the activities permitted in PNAs is made through zones and subzones. Certain activities are permitted in each such zones and subzones, depending on the preservation target sought. For example, the main purpose of core zones will be the preservation of ecosystems and only ecosystem preservation (including their elements) activities, research and scientific collection activities and environmental education activities may be authorized. Any beneficiation activities that alter ecosystems are expressly prohibited, which implicitly bans any mining activity. Subzones are established in buffer zones where under certain conditions, different productive activities can conducted, allowing the creation of sustainability mechanisms for the areas and their dwellers.

Based on the division into zones and subzones, mining activities can only be carried out in the buffer zone, the so-called "special use subzone," which is generally a reduced area with natural resources essential for the community’s sustainable development and that can be exploited or used without damaging the ecosystem, substantially modifying the landscape, or causing irreversible environmental impacts to its natural elements. Additionally, such activities may, in turn, generate resources to maintain and preserve PNAs. 

In accordance with current legislation, exploration or exploitation activities can only be conducted in PNAs within the special-use subzone and will require filings, permits and authorizations aimed at environmental protection, in addition to those required for other areas of the territory.  That is, the additional regulations applicable to these cases not only require complying with stricter rules, but also making other filings with different authorities and complying with the guidelines of the Protected Natural Areas National Commission (CONANP). For instance, mining activities require a Regional Environmental Impact Statement instead of a Preventive Report and a special permit from CONANP, which generally requires performance guarantees and imposes burdens on private parties for the benefit of the ANP, whose noncompliance results in the cancellation of mining concessions. Thus, current regulations protect the goals pursued with the creation of PNAs and there is no need to expressly ban activities, which under certain conditions could generate synergies and positive impacts for the benefit of PNAs themselves.

Considering the foregoing, we believe that an absolute and indiscriminate ban on productive activities in PNAs is neither sustainable nor justifiable under a sustainable development policy. Based on the biological, physical and socioeconomic conditions of the particular zone and on the decree that creates PNAs in particular, it will be necessary to create management plans and programs which, following protection purposes, contemplate the performance of productive activities, such as mining, to generate long-term preservation resources and incentives.

Last, it is worth remembering the 1987 Brundtland Report and the subsequent 1992 Rio Declaration on Environment and Development, which introduced the concept of sustainability, expressly stating that human beings are at the center of concerns related to sustainable development and have the right to a healthy and productive life in harmony with nature. To achieve sustainable development, environmental protection must be an integral part of the development process and cannot be considered on an isolated basis; environmental protection must contemplate the need for productive activities in order to equitably respond to the development and environmental needs of current and future generations.