Mexico’s Congress concluded its legislative year on April 30th, 2019 with 18 bills proposing changes to several laws, including the Mining Law, which could have an impact in how mining operations do business in the coming years. One bill, sponsored by Baja California’s State Legislature, proposed a review of all current concessions and the need for operational approval from state governments. The bill was presented in both Chambers and was rejected by the Senate, likely killing its analog in the Chamber of Deputies. A third bill proposing social impact assessments was also rejected by the Senate. We can break down the remaining 15 bills as follows:
- 5 bills deal with environmental protection;
- 4 bills deal with indigenous communities and public consultations;
- 3 bills deal with the mining fund;
- 1 bill deals with structural changes to the Mexican Geological Services;
- 1 bill deals with tax incentives, and
- 1 bill deals with the administrative procedure in environmental offenses.
A clear pattern emerges from this breakdown, with most bills dealing with environmental protection, the rights of indigenous communities and public consultations. This is not a surprise, as this mimics the recent rise in constitutional challenges brought before the Courts by environmental groups and other NGOs. We have touched on these topics here, here, and here.
We will address all 15 bills in a series of 3 posts. In this post, we will focus on the 5 environmental bills. In our next post, we will focus on the bills covering the rights of indigenous communities and public consultations. And on our third post, we will go over the remaining bills.
Mexico’s Legislative Process
Mexico’s Congress comprises two Chambers: the Senate and the Chamber of Deputies. The Senate houses 128 members, whereas the Chamber of Deputies houses 500 members. In order for a bill to become a law, it must be approved by both Chambers and the President.
Congress works in three-year legislative terms. The current term is called the LXIV Legislature. It started on September 1st, 2018 and will conclude on August 31st, 2021. The three year term is divided into “legislative years”, which are subdivided into two periods of ordinary sessions. The first period runs from September 1st to December 15th and the second period runs from February 1st to April 30th. Besides the two periods of ordinary sessions, Congress may also hold extraordinary sessions to discuss certain matters. Congress discusses and votes most bills during the ordinary sessions.
1. Bill Prohibiting Extractive Activities in Protected Natural Areas
Senator Jesus Lucia Trasviña Waldenrath (MORENA), sponsored a bill on Sept. 20th, 2018, proposing changes to the Mining Law and the General Law of Ecological Balance and Environmental Protection. The bill applies to all extractive industries, including oil, gas, and minerals. The bill prohibits extractive activities within Protected Natural Areas, and any other activity that puts the preservation of these areas at risk. The bill also proposes a ban on marine mining.
Congresswoman Trasviña Waldenrath is Senator for the State of Baja California Sur. The bill was driven in part by the public rejection of the “Don Diego” Project, a marine mining project that was the subject of several constitutional challenges. You may read more about the project’s objections at the Interamerican Association for Environmental Defense’s (AIDA) website. The bill was also motivated by the “Los Cardones” project, which was recently canceled by President Lopez Obrador and whose owners are still continuing the legal battle.
2. Bill Banning Cyanide and Mercury Compounds, Changes to Land Use, Seabed Mining and Opencast Mining in PNAs.
Another bill, sponsored by Senator Maria Guadalupe Saldaña Cisneros (PAN), proposes changes to the Mining Law and several environmental laws. The bill proposes:
- Banning the use of compounds that contain cyanide or mercury within Protected Natural Areas;
- Changing the General Law for Sustainable Forest Development, prohibiting land-use changes to forest lands within Protected Natural Areas for mining projects.
- Changing the National Water Law to ban water concessions for mining projects Protected Natural Areas;
- Banning seabed mining within territorial waters in the Federal Law of the Sea;
- Prohibits opencast mining within Protected Natural Areas in the Mining Law.
The bill was introduced on September 13th, 2018 and was turned over to the legislative committee for consideration.
3. Bill Prohibiting Opencast Mining in Protected Natural Areas
The last bill dealing with Protected Natural Areas comes from Mexico’s Chamber of Deputies. Sponsored by Congressional Deputy Martha Elisa Gonzalez Estrada (PAN), the bill proposes banning opencast metallic mineral mining within Protected areas. The bill also proposes a general ban on mining activities that exceed maximum limits set by Official Mexican Standards (NOMs) for toxic constituents.
The three bills deal with largely the same issues but take different approaches. Deputy Gonzalez Estrada’s bill is the least restrictive, banning only metallic mineral mining; whereas Senator Trasviña Waldenrath’s proposal is much harsher, banning all extractive industries from operating within Protected Natural Areas, including oil and gas. Senator Saldaña Cisneros’ bill takes a different approach, proposing specific measures to regulate mining within Protected Natural Areas. Lastly, the two Senate bills propose a general ban on marine or seabed mining, while the bill submitted to the Chamber of Deputies does not touch on these topics.
4. Environmental Authorizations Bill
The fourth bill on our list also comes from Senator Maria Guadalupe Saldaña Cisneros (PAN) which proposes changing the Mexican Mining Law to prioritize environmental issues during the concession granting process.
In summary, the bill proposes:
- That businesses prove the ability to comply with all environmental regulations prior to applying for a new concession, including environmental impact and risk, change of land use for forest lands, Protected Natural Areas, atmospheric emissions, water usage rights, and integrated waste management;
- This would also apply to applications to reduce, divide, identify or unify surfaces where these changes or the development of new activities would imply a change in environmental impact or risk;
- When transferring a mining concession’s ownership, all environmental rights and duties would be transferred to the new owner. The new owner must verify that the previous owner has complied with all environmental duties and that all permits are valid. The Secretary of the Environment and Natural Resources (SEMARNAT), through the Federal Environmental Protection Agency, could issue a record of compliance.
- Lastly, the mining concession holders and their subcontractors would have to name a “person responsible for regulatory compliance” (PRRC) of environmental duties.
5. Breach of Environmental Duties as Cause for Termination of Mining Concessions
The last bill on our list was sponsored by Congressional Deputy Heriberto Marcelo Aguilar Castillo (MORENA). Presented on April 30th, 2019, the bill proposes adding a section to article 55 of the Mining Law. Article 55 lists the causes for termination of mining concessions. The bill proposes including the repeated breach of the General Law for the Prevention and Integrated Management of Residues, the Federal Environmental Responsibilities Law and the General Law of Ecological Balance and Environmental Protection as a cause for termination.
According to a study conducted in 2015, Protected Natural Areas made up approximately 13% of Mexico’s territory. By the same year, over 1,600 mining concession titles had been granted covering about 1.5 million hectares of Protected areas. The same study found, however, that 75% of Protected areas showed low transformation rates, signaling a relatively healthy rate of conservation. The number of constitutional challenges brought before the Courts has raised awareness of environmental issues. However, the lack of governmental infrastructure to enforce environmental regulations is an issue that has not been raised.
On another issue, environmental groups have teamed up with ejidos and indigenous communities to challenge the constitutionality of mining titles. These groups enjoy special rights under international and Mexican constitutional law, and given that many concessions are located in areas inhabited by these groups, they are ideally suited to bring forth these challenges. We will discuss this issue in our next post.
- Ortega-Rubio, Alfredo. “Concesiones Mineras En Áreas Naturales Protegidas De México.” LA JORNADA ECOLOGICA, 27 July 2015, www.jornada.com.mx/2015/07/27/eco-f.html. ↩︎