2013-2016 San Miguel del Progreso files first challenge to mining concession

On 15 July 2013, the communal authorities of San Miguel del Progreso filed a federal injunction for constitutional protection or judicial review (amparo). The legal action made two principle claims: the first argued that articles 10, 15 and 19 of the 1992 Mining Law violated Mexico’s Constitution and International human rights treaty obligations, such as the American Convention on Human Rights and the Indigenous and Tribal Peoples Convention; the second, that the administrative implementation of the law granting mining concessions Reducción Norte de Corazón de Tinieblas (title 232560) and Corazón de Tinieblas (title 237861) without consultation violated the rights of the indigenous community Júba Wajíin of San Miguel del Progreso.

In response, the First Federal District Court in Guerrero admitted the petition (casefile 1131/2013) and ordered the temporary suspension of mining exploration and exploitation activities related to the Corazón de Tinieblas concessions pending the outcome of the judicial review.

On 6 February 2014, the community of San Miguel del Progreso was informed that the federal court had issued its judgement granting constitutional protection in its favour in relation to the mining concessions on its territory, but had decided not to consider arguments challenging the legality of articles of the Mining Law.

The judicial decision included important precedents, such as:
– citing in domestic law the obligations deriving from international human rights law in relation to the rights of indigenous peoples, this includes treaty obligations and jurisdictional bodies such as the Inter-American Court of Human Rights;
– recognition of the principle of self-identification of indigenous communities;
– acknowledgement of the obligation of courts to guarantee access to justice to indigenous peoples;
– citing the Mexican Supreme Court of Justice (SCJN) judicial guidelines on handling cases involving the rights of indigenous peoples;
– the legitimate interest in legal terms of the collective members of an agrarian community to file such a legal challenge;
– recognition that “possible impact” on the rights of a plaintiff, rather than a confirmed violation, is sufficient grounds to seek constitutional protection;
– recognition of the legal principle that the protection of indigenous territory includes natural resources, not just land;
– recognition of the obligation to fulfil the right to consultation as established in international human rights law, such as ILO Convention 169;
– establishing the minimum elements required to fulfil the right to consultation of indigenous communities (CDHM Tlachinollan 2016: 16-24).

The court concluded that the Ministry of Economy had “the unavoidable obligation established as a constitutional and international imperative to uphold the right to a prior hearing by means of a consultation with the indigenous community which would be affected by the concessions (Juzgado Tercero, 2014: 127).

In March 2014, the Ministry of Economy filed an appeal (recurso de revisión) against the partial ruling in favour of the community and their right to prior consultation. San Miguel del Progreso also filed an appeal against the judgement’s refusal to consider the constitutionality of the Mining Law. Given the importance of the case for other indigenous communities affected by the law, the community, supported by their legal representatives from the Centre for Human Rights of La Montaña – Tlachinollan (CDHM Tlachinollan), lobbied the National Supreme Court (SCJN) to use its powers to take over the review of precedent setting judgements of lower federal courts. They argued that a Supreme Court ruling would set the legal parameters for the country on the issue of the Mining Law. They also observed that the lower court ruling left the terms of compliance to redress the situation in the hands of the Ministry of Economy, leaving ample discretion to the Ministry in relation to the legal situation of the mining concessions.

In February 2015, the justices of SCJN unanimously voted to take over the review of the judgement providing an opportunity for Mexico’s highest court to establish standards in relation to indigenous collective rights and the legality of the Mining Law. However, in October 2015, the community was informed by the SCJN that it had received a petition from the Ministry of Economy for the appeal to be dismissed as the mining concession holder, Hosthchild, had withdrawn its title to the concessions earlier in the year. The Ministry of Economy argued that as the two concessions on San Miguel del Progreso territory had been cancelled, there were no longer any alleged constitutional violations, and thus, no grounds to continue the appeal. The community had not been informed by the government or the company of the cancellation of the concession.

For an indigenous community to secure the cancellation of a mining concession through a legal action was unprecedented. However, the success was tempered by knowledge that the decision to cancel the concession had been taken to prevent the SCJN analysing the Mining Law in relation to Mexico’s constitutional and human rights treaty obligations.

In addition, San Miguel del Progreso and CDHM Tlachinollan were concerned that the legal process of cancelling the concessions had not been undertaken correctly. As a result, the community and CDHM Tlachinollan pressed the SCJN to continue with the appeal review. On 24 November 2015, in accordance with the Mining Law, the Ministry of Economy published in the Official Gazette notice of the cancellation of the concession and the “Declaration of Vacant Mining Lot 02/2015”. On 26 May 2016, the SCJN dismissed the appeal review (casefile 393/2015) and closed the case.