The Importance of the UNDRIP in Mexico

And how it may impact Canadian Mining Companies

Luis Guillermo Cruz Rico*

Abstract

Mexico´s legal system has changed in the last decade and has adopted a new regime regarding human rights protection granting constitutional hierarchy to international treaties such as the Unites Nations Declaration of the Rights of Indigenous Peoples, (UNDRIP). This instrument may have a substantial impact over Canadian companies with mining operations in Mexico which represents almost 75 percent of the foreign direct investment of industry in that country. This paper explores the development of these changes in Mexican constitutional law and how Mexican domestic law provides legal recourse for indigenous peoples to enforce it. The UNDRIP has a substantial weight in Mexico; Canadian companies with mining operations in Mexico should take a proactive and holistic approach to avoid litigation and eventually, interruption and cancellation of operations with a significant financial loss.

Introduction

On September 13^th, 2007, 144 countries, including Mexico, voted in favour to adopt the Unites Nations Declaration of the Rights of Indigenous Peoples, (UNDRIP)[1] which is considered the most comprehensive international instrument on rights of indigenous people. The UNDRIP establishes a universal framework of minimum standards for survival, dignity, and well-being of indigenous peoples[2]; since then, participation in decision-making matters that may affect indigenous rights, and free, prior, and informed consent have been recognized as a fundamental right[3] of indigenous people. Nevertheless, its implementation depends on the legal tradition of each signatory state. For example, for some countries treaties signed by the executive branch create binding legal obligations as a matter of international law; however, signature and ratification are not sufficient to create obligation of domestic law until a “transformation” process is completed by means of legislation to form part of domestic law. Mexico used to have that approach until 2011 when its constitutional system started a fundamental transformation in terms of recognition and protection of human rights.  Since then, principles of universality, interdependence, indivisibility, and progressiveness were adopted as domestic law and all branches of government, including federal, state, and municipal authorities are obligated to observed them. In addition, in 2016 a new law reform took place and international treaties ratified by Mexican senate acquired constitutional hierarchy, in other words, UNDRIP must be considered as part of the “law of the land” of Mexico.  These changes may have a fundamental impact for the following reasons: almost 17 million people in Mexico are considered indigenous peoples[4] representing 15.1% of Mexico´s population and, from 2,456 municipalities, 624 are identified as indigenous communities[5] located in states like Chihuahua, Chiapas, Durango, Guerrero, Hidalgo, Oaxaca where mining is an important industry. Canadian companies with presence in Mexico should be mindful that the UNDRIP is not just a declaration of good intentions in that country because now it has been adopted as part of domestic law and provides legal recourse to indigenous people to make authorities and companies accountable and responsible for any breach of this international instrument.

Changes in Mexican Constitutional Law

On June 10, 2011, eleven articles of Mexican Constitution were modified in one of the most significant constitutional changes in Mexico´s legal system; the main theme of the modification focused on the enhancement of human rights protection through the adoption of, among other mechanisms, the pro homine principle and international human rights standards[6]. The core of this new approach is reflected with the new wording of article 1o of the Mexico’s Constitution:

In the Unites States of Mexico, all persons shall enjoy the rights recognized by the Constitution and international treaties to which the Mexican State is party, as well as guarantees for their protection, the exercise of which may not be restricted or suspended, except in cases and under conditions established by this Constitution[7].

By adopting the principle of pro homine, public authority in Mexico is obligated to apply the greatest protection for an individual favoring the broadest protections for people. Before 2011, Mexican courts used to apply a much more restrictive interpretation of the Constitution, limiting the ability of human rights protection to only those rights recognized by the Mexican Constitution. With this new approach, human rights must be interpreted in accordance with the Constitution and international treaties. With the pro homine principle as part of the constitutional regime, Mexican Congress granted authority to Mexican courts to follow a new standard of review to create superior protections for human rights. The constitutional reform has created a new paradigm for the protection of human rights in Mexico; all Mexican judges—both federal and state— are endowed with the power to apply international standards in human rights cases.

January 26, 2016, is another significant date; an amendment of article 133 of Mexico’s Constitution provides constitutional hierarchy to international treaties as follows:

This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the supreme law of the whole Union. The judges of each State shall conform to the said Constitution, the laws, and treaties, in spite of any contradictory provisions that may appear in the constitutions or laws of the States

This amendment was a result of a judgment of Mexico´s Supreme Court[8] to resolve a “conflict between jurisdictions” and led to compliance with the Inter-American Court of Human Rights’[9]. The Court defined the criteria that were henceforth to prevail regarding the constitutional position of international human rights treaties, and thus finally providing a clear benchmark for Mexican judges to proceed with executing the new constitutional human rights reforms. The Court decided that article 1^o of the Constitution generated a new set of human rights standards, of both a constitutional and conventional origin, governed by interpretative principles, among which no distinction could be made regarding the source from which the said rights were derived. In this way, it was fully recognized that the expanded list of human rights contained in the 2011 amended version of the Constitution would lead to enhanced harmonization of national and international human rights based on the pro personae principle, thus paving the way for the broadest possible protection for individuals. With this decision and eventually, with the amendment of article 133 of Mexico’s Constitution, international human rights standards contained in treaties to which Mexico was a signatory now form part of the Mexican legal system and are considered with the same rank in the hierarchy as the norms established in the Constitution.

Mexico Mining Law

Under the Mexican Constitution, Mexico as nation originally owns all minerals, irrespective of surface ownership. The Mining Law further considers mining an activity of public utility and a preferential land use over any other with exception of hydrocarbon extraction and electricity transmission[10]. Concessions are granted on a first come, first serve basis to qualified Mexican nationals or Mexican companies (which can be 100% foreign owned)[11]. They include both exploration and extraction rights, as well as guaranteed access to mining deposits, including through expropriation. Mining concessions are granted for 50 years and may be renewed for the same time. The Mining Law was designed to impose very few restrictions on mining enterprises; the process to obtain a mining concession is straightforward from the technical perspective and Canadian companies are aware of these advantages.

Amparo as Legal Recurse

Amparo is an extraordinary constitutional recourse, like an appeal and injunction, which must be filed in a federal court by anybody who believes that fundamental rights have been breached by a public authority and it is often referred to as a “constitutional protection or shelter[14]”. Amparo is regulated by articles 103 and 107 of the Federal Constitution and by the Amparo law; this proceeding may be used for five purposes: 1) as a defense of the individual guarantees provided in the Constitution, including due process and rule of law; 2) against unconstitutional laws; 3) to review the legality of judicial decisions; 4) against final administrative decisions, awards, and resolutions affecting private parties; or 5) to protect communal rights of agrarian and indigenous people.

The rights involved in an Amparo are related to the rights set out in the Mexican constitution and international treaties signed by the executive branch and ratified by the senate. It is important to note that in accordance with Mexican constitutional regime, private issues or disputes are excluded from Amparo cases; only a government authority maybe responsible for violating rights guaranteed under the constitution. Also, when a judge certifies an Amparo, its effect shall be limited to the people who are seeking protection and the parties involved in the proceedings and the ruling does not have general biding effects.

Based upon the constitutional changes above mentioned; a growing number of indigenous and agricultural communities are taking legal action to protect their territories from mining projects[15], for example in July 2013 San Miguel del Progreso-Júba Wajíín, a Me’phaa (Tlapaneca) community of approximately 3,800 people located in the Municipality of Malinaltepec, Guerrero,[16] filed an amparo alleging mining concessions in their region violated their constitutional rights to territory and consultation, and challenging the constitutionality of the Mining Law[17]. On June 28, 2017, the court granted federal protection; the ruling is the first precedent recognizing the collective rights of the community, and it is the first time that the Mexican government has been ordered to respect collective rights of indigenous peoples, including their right to territory and free, prior and informed consent. This decision was in accordance with the highest international standards in the matter.  Since then, several communities in Mexico have declared themselves free from mining; for example, 71 indigenous communities in the States of Puebla and Colima, members of Red Mexicana de Afectados por la Minería, REMA (Mexican Network of Those Affected by Mining)[18] have filed Amparos.

The impact of UNDRIP has a substantial weight in Mexico. In accordance with official data, almost 17 million people in Mexico are considered indigenous peoples[19] representing 15.1% of Mexico´s total population. States like Chihuahua, Chiapas, Durango, Guerrero, Hidalgo, and Oaxaca with heavy mining activity encompass an important presence of indigenous communities. Finally, 624 of the total of 2,456 municipalities in the country are considered indigenous communities[20].  On the other hand, more than 150 foreign companies with mining operations in Mexico are Canadian, representing more than 75% of the foreign direct investment in that industry. Therefore, mining companies should adopt a broader and holistic approach. It is not enough to solely fulfill technical requirements to obtain and exploit a mining concession; they should take proactive and meaningful steps to engage indigenous communities that may be affected by a mining project. Consultation should be real including prior, free, and informed consent that must be obtained clearly and unequivocally, if not, mining companies may be exposed to expensive litigation and a real possibility of interruption or even cancellation of operations.

Conclusion

Mexico´s legal system has changed dramatically in the last decade and has adopted a new regime regarding human rights protection granting constitutional hierarchy to international treaties. Therefore, the Unites Nations Declaration of the Rights of Indigenous Peoples, UNDRIP has a fundamental role in the protection of indigenous peoples in Mexico; its significance has been transformed from a set of good intentions to a comprehensive body of laws that is a source of domestic obligations for public authorities. Now, these international obligations are substantive guidelines granting authority to federal courts to ensure that consultation and prior, free, and informed consent were observed during the process of granting mining concessions. This new approach is empowering indigenous peoples in Mexico for the use of their natural resources and the protection of their environment in the context of mining projects in their territories. Mining companies with operations in Mexico should adopt a broader and holistic approach as it is not enough to fulfill technical requirements to obtain and exploit a mining concession; they should take proactive and meaningful steps to engage indigenous communities that may be affected by a mining project. Consultation should be real and prior including free, and informed consent that must be obtained clearly and unequivocally; if not, mining companies may be exposed to expensive litigation.

*Luis Guillermo Cruz Rico

Dually qualified lawyer in Mexico and Ontario, president of Mexico-Canada Alliance of Commerce and Mexico Business Club, member of Canadian Immigration Lawyer Association, Canadian-Hispanic Lawyer Association and head of MC Law Firm, first boutique firm devoted to Mexican and Canadian Law in Mexico based in Toronto.

[1]United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295)

[2] https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html

[3] Article 18, United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295)

[4] By 2021, 16,933,283 lived in Mexico, https://www.iwgia.org/es/mexico/3745-mi-2020-mexico.html

[5] Programa Especial para Pueblos Indígenas 2014-2018, https://www.dof.gob.mx/nota_detalle.php?codigo=5343116&fecha=30/04/2014

[6] Improving Human Rights in Mexico: Constitutional Reforms, International Standards, and New Requirements for Judges, Víctor Manuel Collí Ek, https://www.corteidh.or.cr/tablas/r30492.pdf

[7]  Constitución Política de los Estados Unidos Mexicanos [C.P.], as amended, art. 1, para. 2, Diario Oficial de la Federación [DO],

[8] Contradicción de Tesis 293/2011, “SCJN determina que las normas sobre derechos humanos contenidas en Tratados Internacionales tienen rango constitucional”.  September 20 2013,

[9] Judgment in the Radilla Pacheco case, Radilla Pacheco v. Mexico, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 209 (Nov. 23, 2009).

[10] Ley Minera, Diario Oficial de la Federación, June 26, 1992, as amended November 8, 2014, Art. 6.

[11] Ley Minera, Art. 10, 11 13 and 13 BIS. Indigenous and agrarian communities that claim a concession on the land they occupy at the same time others do will have a preference over the concession if they meet the same requirements.

[12]  Companies with Mining Operations, Integral System on Mining Economy, https://www.sgm.gob.mx/Web/SINEM/mining/mining_companies.html

[13] Corruption, Murder and Canadian Mining in Mexico: The case of Blackfire Exploration and the Canadian Embassy, Mining Watch, https://miningwatch.ca/sites/default/files/blackfire_embassy_report-web.pdf

[14] Mexico, New Amparo Law is Enacted, https://www.loc.gov/item/global-legal-monitor/2013-04-30/mexico-new-amparo-law-is-enacted/

[15]  Carla Sbert Carlsson, Amparos filed by indigenous communities against mining concessions in Mexico: implications for a shift in ecological law, file:///Users/luisguillermocruzrico/Downloads/Sbert-AmparosbyIndigenousCommunitiesfromLoEL.pdf

[16] Eloisa A. Mora Cabrera, The ecosocial struggle against mining in The Montaña de Guerrero: defending the territory in times of dispossession, 65 Textual 129 (2015).

[17] Júba Wajíín Amparo or the Amparo proceeding 429/2016 http://www.tlachinollan.org/opinion-juba-wajiin-rayo-las-mineras/

[18] www.remamx.org

[19] By 2021, 16,933,283 lived in Mexico, https://www.iwgia.org/es/mexico/3745-mi-2020-mexico.html

[20] Programa Especial para Pueblos Indígenas 2014-2018, https://www.dof.gob.mx/nota_detalle.php?codigo=5343116&fecha=30/04/2014