The Ministry of Economy must consult with the indigenous population of Tecoltemi, Puebla, before granting a concession to exploit an open-pit gold and silver mine in the region, owned by the Canadian company Almaden Minerals Ltd, ordered the Supreme Court of Justice of the Nation (SCJN).
The community’s victory was not complete, as it called on ministers to declare the mining law unconstitutional, for failing to include provisions on indigenous consultation. However, the ministers stressed that said standard is general and not intended exclusively for indigenous peoples, for whom it is not mandatory that it contains provisions on said democratic exercise.
In the specific case, given that the mine has effects on the environment inhabited by the Nahua community of Tecoltemi, the ministers of the first chamber have decided that the action of the federal authority, in granting the permit, has a direct impact on an indigenous population, which therefore must be consulted.
“In the particular case, the Ministry of Economy, during the process of issuing the mining concession titles on the properties called ‘Cerro grande’ and ‘Cerro grande 2’, should have provided for a consultation procedure with the indigenous community, today a plaintiff party, which complies with all the requirements indicated by ILO Convention 169, since the activities of extraction of minerals from the subsoil – object of the concession titles – are goods that share a double regime explains the project prepared by Minister Jorge Mario Pardo Rebolledo.
This is because, although the subsoil of the national territory belongs to the Mexican State, the ILO agreement recognizes the rights of indigenous communities over the use, administration and conservation of their ancestral goods.
The approved decision orders the Ministry of Economy to leave the granted concession titles groundless and to “issue them again, considering that although the mining law does not regulate the procedure to be followed, there is a contractual obligation for all Mexican authorities to implement the necessary mechanisms or procedures that make effective the right to prior, free and informed consultation of indigenous peoples when the legal sphere of their members is harmed by the issuance of their acts.