A Federal Court in Puebla declared various articles of the Mexican Mining Law unconstitutional in a judgment rendered on March 5th and published on April 12th, 2019. The decision stems from an Amparo proceeding filed by indigenous communities in Puebla which claimed that the procedure to grant concessions, and specifically, the failure to hold public consultations with indigenous communities prior to granting mining concessions on their lands violates their rights.
The Court found that concessions “interfered, limited and annulled the right to property, possession, use, and benefit of the land and the territory, since they authorized their holder to carry out mineral exploration and exploitation, activities that affect natural resources that petitioners have had access to and possessed ancestrally”. As a result, the failure to consult with indigenous communities prior to granting mining concessions violated the Convention Concerning Indigenous and Tribal Peoples in Independent Countries, adopted in Geneva in 1989, as well as article 2-A-VI of the Mexican Constitution, which regulates indigenous people’s rights to the lands they occupy and inhabit. The failure to regulate public consultations within the Mining Law, the Court found, resulted in arelative legislative omission, which the Supreme Court defines as an omission to enact legislation when required by the Federal Constitution.
In that context, the Court ruled that:
- Congress must enact legislation to include public consultations within the Mining Law in the current legislative period, and
- The General Directorate of Mining Regulation must cancel and reevaluate the challenged concessions taking into account the communities’ rights.
Challenging Indigenous Status
Concession holders challenged petitioners’ status as members of indigenous communities exhibiting certificates from state and local authorities claiming no indigenous communities were located in the concession area. However, the Court found that expert testimony by anthropologists proved petitioners claim and recognized petitioners as members of indigenous communities as sanctioned by the Constitution of Puebla and its laws. Additionally, the Court found that comparisons between the concession titles and mapping conducted by the National Institute of Statistics and Geography (INEGI) for the National Agrarian Register (RAN), proved the mining concessions overlapped with lands allocated to the communities by presidential decree.
As discussed in previous posts, rural land procurement is complicated by the historically conflicted nature of rural land tenancy in Mexico, as well as the lack of information needed to evaluate risk. Government authorities have made great strides in documenting the current state of rural land as well as making information available in databases such as the Atlas of the Indigenous Peoples of Mexico, the Geospatial Information System of the Rural Cadastre (SIG), and the Historical Record of Agrarian Nuclei (PHINA). These tools, however, do not replace physical site inspections and public registry visits when identifying risk. This case serves as a reminder of the importance of carrying out a proper due diligence process.
The Court did not rule on the greater issue of whether the Mining Law is unconstitutional on the grounds that article 2 gives indigenous communities preference over the natural resources of the lands they occupy and inhabit, whereas the Mining Law gives mineral exploration preference over any other use of the land (excluding exploration and extraction of oil and electric power distribution). It remains to be seen whether the communities will petition the Circuit Court for review and whether the Supreme Court will assert jurisdiction given the matter’s significance.