Bills Related to Indigenous Communities & Public Consultations
This is part 2 in our series of Bills Pending Discussion in Mexico’s Congress that could impact the mining industry. In part 1 we discussed the 5 bills which introduced changes to environmental laws. In this post, we will discuss the 4 bills dealing with indigenous communities and public consultations.
Indigenous Rights and Public Consultation Bills
1. Bill Proposing Social & Economic Remediation
Senator Manuel Añorve Baños (PRI) sponsored a bill proposing changes to articles 27 and 55 of the Mining Law. Article 27 enumerates concession holder’s general duties, whereas Article 55 lists the offenses which are grounds for cancelation of mining concessions.
The bill asserts that mining activities should not hinder the economic and social activities of the communities where development takes place, taking into account their culture and way of life. Failure to implement counteractive measures would be grounds for cancellation. Similarly, the bill adds failing to implement environmental remediation measures as grounds for cancellation.
2. Bill Guaranteeing Right to Public Consultation
On the 21st of February, Senator Salomon Jara Cruz of the MORENA party sponsored a bill proposing changes to article 6 of the Mining Law. The bill states that the Secretary of Economy must guarantee the right of ejidos and indigenous communities to the project’s information and the right to consultation prior to approving a mining concession. The bill was presented on March 5th, 2019 and turned over to the legislative committee for consideration.
3. Bill Granting Indigenous Peoples Preference to their Territories and Requires Public Consultations
On April 30th, 2019, Congressional Deputy Clementina Marta Dekker Gomez (PT), sponsored changes to article 6 of the Mining Law. According to the document, the bill’s goal is to establish indigenous communities’ right to public consultation and consent regarding any mining project within their territories. However, the bill does much more than that, because Article 6 gives extractive activities preference over any other use of the land, whereas the bill asserts indigenous people’s rights over their territories and thus creates an exception to article 6. The bill also guarantees the right to public consultation of mining projects within indigenous territories.
4. Bill to Secure Indigenous Communities’ Rights
Congressional Deputy Teofilo Manuel Garcia Corpus (PRD) sponsored the last bill on our list and submitted it to the Chamber of Deputies on October 9th, 2018. The bill aims to secure indigenous communities’ rights by adding a chapter to the Mining Law dedicated to Indigenous People’s Rights. The most notable characteristics of the bill are:
- Unlike the current law, which gives mineral extraction preference over any other use of the land, the bill gives indigenous communities preference to the land and its exploitation, including mineral extraction;
- The bill guarantees the right to public consultations as part of the right to self-determination;
- It repeals the sections of the Mining Law that require indigenous communities to match competing bids for a mining concession within their territory;
- It establishes a community development fund requiring an investment of at least five percent of the extracted minerals’ value.
- Adds severe environmental pollution and contamination of natural resources in indigenous territories as grounds for cancellation;
- Adds social and economic components to Environmental Impact Assessments which are meant to measure the impact that mining activities might have in the way of life of indigenous communities, their religious and cultural sites, as well as the measures and remedies needed to avoid or mitigate these impacts.
Public Consultations and Indigenous Rights, Differences in Approaches
Recent high-profile cases have put indigenous communities’ rights in the spotlight. Most prevalent among these is the right to public consultations, which three of the bills discussed in this post aim to regulate. In previous posts, we have expressed our concern about the lack of regulation on the matter. As long as Congress doesn’t regulate consultations, Federal Courts will continue to review and potentially cancel mining projects.
Three bills address public consultations using three substantially different approaches. Senator Jara Cruz’s bill establishes the State’s duty to carry out public consultations before granting concessions in lands classified as ejidos or communities. Deputy Dekker Gomez’s bill, on the other hand, asserts indigenous communities’ rights to the land, guaranteeing it through public consultations. In other words, while the former guarantees the right to public consultations, the latter guarantees the right to the land. Additionally, we could argue that Senator Jara Cruz’s bill only applies to ejidos and communities, while Deputy Dekker Gomez’s bill applies to the much broader category of ancestral property. The difference is substantial because Ejidos and communities are well-defined terms, whereas ancestral property is a vague and much broader term. Lastly, the bill sponsored by Congressional Deputy Teofilo Manuel Garcia Corpus takes a different approach. Like Deputy Dekker Gomez’s bill, it guarantees indigenous communities’ rights to the land but goes beyond the other two bills by proposing adding a chapter on indigenous communities’ rights. All three bills, however, fail to address the regulatory process of public consultations. This concerns us because failure to regulate the process will probably result in increased judicial review.
Another concern is the lack of discussion on the larger subject of indigenous rights in general. Up to this point, court cases have centered on public consultations. However, this is only a fraction of the matter. In a previous post, we discussed how a Federal Court for the District of Puebla failed to address whether the Mining Law was unconstitutional on the grounds that the Law gives mining activities preference over any other land use, whereas Article 2-A-VI of the Constitution establishes the preferential right of indigenous communities to the land and its natural resources. Although the Court avoided the question, it will inevitably be brought up in the future.
We will follow this topic as it continues to evolve, both in the courts and in Congress. In the meantime, we look forward to discussing the remaining bills on our last post of the series.