Pros and Cons of Prior Consultation for Projects in their territories. “The needs of the many...
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Pros and Cons of Prior Consultation for Projects in their territories. “The needs of the many outweigh the needs of the few” Riela - SyS September 2014
Pros and Cons of Prior Consultation for Projects in their territories. “The needs of the many outweigh the needs of the few” Riela - SyS September 2014
Presentación de PowerPointPros and Cons of Prior Consultation for
Projects in their territories. “The needs of the many outweigh the
needs of the few”
Riela - SyS
September 2014
BACKGROUND
Mexico was the second country to ratify the ILO 169 Convention on
September 5, 1990
Even though the Convention was ratified, Mexico failed to revise
its legal system to implement prior consultation
In 2009, the Inter-american Court of Human Rights (CIDH) issued the
“Rosendo Radilla vs Mexico” ruling, which changed the Mexican legal
system forever.
Rosendo Radilla
The judiciary must carry out an ex officio “control of
conventionality [control of compliance]” of its domestic
legislation to determine whether it conforms to the American
Convention
The foregoing derived in an integral revision of human rights laws
in Mexico and included the concepts of “control of conventionality”
and “constitutional control” for the first time in the history of
Mexico
International treaties executed by Mexico became laws applicable in
Mexico and courts (and administrative bodies) became bound to
interpret and implement them
The foregoing means that, among many others, ILO 169 Convention
became effective and a formal part of the Mexican legal
system.
Mexican authorities and project developers were not ready to handle
or even aware of the implications of the foregoing (and at some
levels are still not aware).
No governmental authority took the lead in the implementation and
project developers were not made aware of the consequences of prior
consultation.
Examples of failed projects
Description of the Project: Largest wind farm in Latin-America with
an installed capacity of 396 MW which would supply power to FEMSA
factories and Oxxo stores throughout the Country. $1 Billion
Dollars total investment (30% - 70% ratio).
Relevant due diligence aspects considered: zoning, metes and
bounds, encroachments, agrarian situation (Ejido), permitting and
licensing. Table of permits.
Failed to consider: Social and political background. Unfair
distribuiton of payments. Ikjöt tribe. ILO Convention 169. Ejido
Amparo (ex officio and immediate injunction).
Description of the Project: Exploitation of 35 mining concessions
(silver and gold) at San Luis Potosí. Total investment project:
$100 million USD, creating 700 direct jobs plus $10 million USD
invested in environmental projects.
Relevant due diligence aspects considered: concession titles,
rights of way and usufructs, permitting and licensing. Table of
permits.
Failed to consider: Indigenous presence (Huicholes), sacred areas
and plants, and cosmogony of the community.
The result was that all the mining concession of First Majestic
Silver Corp were returned to the Federal Government, along with the
corresponding land. The Project caused waves throughout the human
rights community and became the flagship of Prior Consultation in
Mexico.
Acueducto Independencia Yaquis 2013
Description of the Project: Construction of an aqueduct to increase
supply of potable water to the State capital of Sonora, Hermosillo.
The project commenced in 2010 and was concluded on 2013.
Conflict: The Yaqui indigenous tribe considers that the
construction of the aqueduct affects their right over the water
contained in the Yaqui River and the El Novillo and Abelardo L.
Rodríguez dams. The Yaqui tribe argued that the Federal Government
breached their hearing rights as not Prior Consultation took place
in order to grant the corresponding authorizations.
Consequences: The Supreme Court of Justice granted an “amparo” in
favor of the Yaqui tribe, under which the EIA obtained by the
government was declared null and void and the federal authority was
mandated to carry out Prior Consultation towards reaching an
agreement. The resolution is a landmark in Mexico, as it was the
first document to actually spell out Prior Consultation as a right
and obligation.
The state of the art
Energy Reform:
Articles 118 through 121 of the new Hidrocarbons Law as well as 117
through 120 of the new Electric Industry Law mandate the need to
perform Prior Consultation and a Social and Cultural Impact
Study.
SENER has created to Undersecretaries: Oil and Electricity. Each
undersecretary has created a Prior Consultation Department.
Only a few amount of projects have been approved (1 Oil and 1 in
Electricity) and in both cases the determination was that
consultation was not required.
The state of the art
Energy Reform:
Local NGO’s (advised by CEMDA) are flooding the courts with amparos
under the “self-adscription” principle.
Lack of proper laws, regulations, as standards has opened the
floodgates to every group and interest to stall projects.
The flag raised by the energy reform will permeate across all the
Mexican legal system, particularly infrastructure and zoning
plans.
Right now, due to the lack of proper legislation and clear
administrative procedures, a huge volume of projects remain stalled
or on the verge of being blocked by local NGOs.
Conclusions
From a strict legal standpoint, today local communities have more
solid legal arguments to prevail in court. We expect this scenario
to be reverted in the short run.
The classic way of developing projects in Mexico (energy,
infrastructure, or even legislation) changed with the Rosendo
Radilla resolution.
The definition of progress cannot exclude the cosmogony of local
indigenous tribes. Viceversa, the cosmogony of local indigenous
tribes cannot exclude progress as a basic premise.
Avoid heavy industry activities
Technology as a means to reduce impact while maintaining
progress
Non-interfering incidence with local communities through community
development programs based on investment in infrastructure.
Smart “shared benefits”. Think global act local.