- Finds that the mining concessions under consideration are illegal for having violated the right to consultation and free, prior and informed consent
- Recognizes that the community of Tecoltemi is Indigenous, determining that the self-identification of the community as Nahua is sufficient
On April 22, the court notified the Nahua Indigenous community of Tecoltemi in the municipality of Ixtacamaxtitlán of the decision of the Second District Courthouse responsible for Civil Protection Measures and Administrative, Labour and Federal Processes in the state of Puebla. The decision is dated April 11 and is part of the constitutional protection process (amparo) 445/2015. The community brought the case with the accompaniment of Fundar and the Tiyat Tlali Counsel against the Secretary of Economy for having granted two mining concessions in their territory without their prior consultation or consent. The suit was also brought against the national legislature and the President’s office for having approved articles in the mining law that violate the internationally and constitutionally recognized rights of Indigenous communities and agrarian communities (ejidos).
In its decision, the court granted Tecoltemi its injunction, recognizing not only that its right to consultation was violated, but also the community’s right to free, prior and informed consent. It further determined that the mining concessions in the name of Canadian mining company Almaden Minerals “came about illegally, because they were granted without having taken into consideration the opinion of the affected Indigenous community.” As a result of this illegality, the court ordered the Secretary of Economy to declare these concessions null and void, and to provide the company with a new response based on the original request for mining concessions, taking into consideration that they are located in Indigenous territory.
The court further recognized that Tecoltemi is an Indigenous community for which reason it enjoys special legal protection. On the basis of the Constitution and Convention 169 of the International Labour Organization, it found that it is enough that the community self-identifies as part of the Nahua People to be recognized as Indigenous and enjoy the associated protections. In this vein, the court rejected the company’s assertions, which it has repeatedly stated throughout the legal process that there is no Indigenous population in the municipality of Ixtacamaxtitlán, which is affected by its two mining concessions. In fact, the court indicated that the territory of Ixtacamaxtitlán “legitimately belongs to Indigenous peoples in the area.”
It is worth pointing out that the judge established that “to recognize the specificities of Indigenous peoples carries with it a corresponding obligation for the state to consult with them in order to avoid repeating patterns of inequality in any decision-making process, whether legislative or administrative.”
With regard to Tecoltemi’s request for various articles of the Mining Law to be reviewed, the court did not analyze the arguments of unconstitutionality that the community presented, for which reason it did not consider the law in light of Constitutional or international protections afforded to Indigenous peoples and agrarian communities (ejidos). Instead, the court found that the legislature had failed in its obligation to update the mining law and incorporate the rights to consultation and free, prior and informed consent. In this regard, the court indicated that the legislature committed a respective legislative omission, which creates a situation of unconstitutionality. The court indicated that “the result of the right of Indigenous peoples and communities to prior consultation should be reflected in the content of the law, which at the same time guarantees the right to self-determination and the need to obtain free and informed consent.”
It is important to recall that the community’s central argument was that the Mining Law violates the Constitution and international treaties because it gives preference to mining over other activities, which enables authorities to grant communities’ territories to mining companies. Tecoltemi and the accompanying organizations will continue to argue against these violations.
It is important to clarify, given Almaden Minerals’ recent statements related to this decision, that the mining concessions related to this process (Cerro Grande and Cerro Grande 2, granted in 2003 and 2009 respectively) are the same mining concessions on which the company seeks to construct an open pit gold and silver mine. It is false that these concessions were previously cancelled and that the extractive project is located on other concessions. Fundar and the Tiyat Tlali Counsel have previously reported that, for more than three years, the company tried to cancel the concessions in order to bring this legal process to an end without a decision. But, in February 2018, a Collegiate Tribunal found that the Secretary of Economy could not authorize cancellation of the Canadian company’s concessions because this would violate suspension as protection that the court ordered for the community at the start of this case.
It is worth noting that this decision is subject to appeal by either of the parties involved, for which reason it could be some time before there is a definitive decision.