Even though prior consultation is not included in the existing Mining Law, the Labour Party MP pointed out that it should incorporate this principle, which is contemplated in the International Labour Organization’s Indigenous and Tribal Peoples Convention, which came into force in Mexico in 1991.
According to the Convention, whenever legislative or administrative measures taken by signatory countries may affect Indigenous peoples, they must be consulted through appropriate procedures.
Back in May 2023, Mexican Senators approved a new mining law in an accelerated process without opposition legislators present.
Even though it doesn’t include the prior consultation process, the new law did reform the scheme for obtaining mining concessions, which are now granted only through public competitions or tenders carried out by the Ministry of Economy.
The law also reduced the concession length to 30 years from the previous 50 years, although they may be extended for another 25 years.
An example
As an example of prior consultation, Bernal noted that the Nation’s Supreme Court evaluated, via Amparo Trial number 134/2021, whether the Ministry of Economy had the obligation to conduct a prior, free and informed consultation with the Tecoltemi Indigenous community, located in the southeastern Puebla state, before considering granting Almaden Minerals a concession in the area.
She recalled that the Supreme Court determined that, although the Mining Law does not regulate the procedure to be followed for prior consultation, there is a conventional obligation for all Mexican authorities to carry out necessary mechanisms that uphold the right to consultation of Indigenous peoples when their actions may harm the legal rights of such communities.
“In this context, the objective of the initiative is to include, within the Mining Law, the obligation that, when the concessions granted by the Ministry of Economy are in the territory of Indigenous peoples or communities, they must be consulted in advance,” Bernal said.