Are Mexico's proposed indigenous rights reforms a threat to mining?

The most recent proposal by Mexico’s President Andrés Manuel López Obrador to modify the constitution to give more rights to indigenous and Afro-Mexican peoples and communities is worrying the mining sector, amid fears that they could be used to stop projects and may lead to abuses.

At the beginning of the year, the president sent the legislature a package of 20 constitutional reforms and other measures aimed at strengthening social programs, weakening or eliminating autonomous agencies, boosting state electricity company CFE and prohibiting open pit mining and fracking, among other controversial proposals.

The initiative to amend article 2 of the constitution seeks to recognize indigenous and Afro-Mexican peoples and communities as subjects of public law and with legal personality. 

Likewise, the initiative proposes guaranteeing them the right to be consulted about administrative or legislative measures that significantly impact their life or environment, as well as to receive fair and equitable benefits from lucrative activities.

“The indigenous issue is being used incorrectly to stop projects,” mining lawyer Alberto Vázquez told BNamericas. “With this reform, [environmental] NGOs can have more strength to create communities with the intention of stopping productive projects… not just mining ones,” added the partner of the Tête à Tête Abogados law firm.

Vázquez said the reform is “quite demagogic” and, although it seeks to give more rights and strength to the indigenous and Afro-Mexican communities – which are also not clearly defined – in practice “it will cause more abuses regarding NGOs, not only in the mining sector.”

The constitutional reform states that 25.7mn Mexicans identify as indigenous, or 21.5% of the population, while 1.3mn people or 1.2% of the population consider themselves Afro-Mexican.

“They would be giving many powers to indigenous and Afro-Mexican communities, but also to communities such as ejidos [land cooperatives] and agrarian communities,” Vázquez said.

Pending legislation

Although private industry also advocates legislating on the issue of indigenous consultations, doing so via a constitutional reform does not seem to be the most appropriate way, according to some legal experts.

“There is no law that regulates the second constitutional article and I doubt it will be issued. Now that second article is being reformed and, if approved, it will create more uncertainty for investment,” Vázquez added.

“The most important thing is the issuance of the corresponding laws that regulate these rights. That is, the constitution establishes the bases, but if the corresponding laws aren't issued, then it would remain a mere constitutional reform, creating more problems than solutions. And in this sense, it may take years for laws and regulations to be issued establishing how it would be applied,” the lawyer said.

The modifications must be approved by two thirds of the lower house and the senate, where the ruling Morena party does not have a majority, as well as by 17 state legislatures.

However, there is a possibility that the measures will receive the green light if Morena achieves the necessary majorities in the congressional elections on June 2, when the next president will also be elected.