An Indigenous Community’s Case Against Mining Concessions, from the Lens of Ecological Law

By: Carla Sbert

In Mexico, as in several other countries where large-scale mining has boomed since the 1990s, hundreds of communities have declared themselves “free of mining.” Many Indigenous communities have challenged mining concessions on their territories, arguing that these were granted in violation of their constitutional rights. While these are mostly described as struggles for self-determination, they are also struggles for environmental justice.

Júba Wajíín is one of the communities threatened by large-scale mining. Also know as San Miguel del Progreso, this Me’phaa (or Tlapaneca) Agrarian Indigenous community of approximately 3,800 people is located in the Mexican State of Guerrero. In 2011, witnessing a growing interest in the region’s mineral potential and aware that other communities had been harmed by mining projects, the community declared itself free of mining. Two years later, after learning that two mining concessions had been granted on its territory, Júba Wajíín filed an amparo—a special judicial review to protect fundamental rightsagainst the mining concessions.

Indigenous rights and mining law in Mexico

The Mexican Constitution and international instruments to which Mexico is a party recognize certain rights of Indigenous peoples, including the rights to territory and to consultation before carrying activities affecting their territories. In Mexico, the State owns all minerals and can grant concessions to private companies for their exploitation. Under the Mining Law, a concession includes exploration and extraction rights, and guarantees access to the minerals, including through expropriation. The term for a concession is 50 years, renewable for the same period. Mining is considered an activity of “public utility” and given precedence over any other land use, except oil and gas extraction.

In the amparo, Juba Wajíín argued that several provisions of the Mining Law regarding mining concessions contravene the Mexican Constitution, ILO Convention 169 on Indigenous and Tribal Peoples and the American Convention on Human Rights. Also, the community argued that in granting the concessions the authorities violated the community’s collective right to property of their Indigenous territory, to the protection of Indigenous lands, and to consultation, as well as the general guarantees of legality and legal certainty, and the obligation to protect communal lands both for purposes of human settlements and for productive activities.

The Júba Wajíín amparo from the lens of ecological law

In a forthcoming article (Mexican Law Review, December 2017), I explore this case from the perspective of the new legal paradigm that is the focus of my research: “ecological law.” This new paradigm aims to ensure that society and the economy respect ecological constraints, thus reflecting the physical reality of the planet.

Ecological law is emerging in response to the inability of environmental law to adequately address the root causes of the deepening ecological crisis. It is part of a shift away from a growth-insistent economic model, to an economy that operates within the planet’s biophysical limits, with much reduced material-energy throughputs and ecological footprints. Finally, it is also part of a shift to a different conception of the relationship of humans among themselves and with the Earth.

In order to better understand what adopting this new paradigm will entail, my research proposes identifying the major affinities and inconsistencies between existing laws and ecological law, with a tool I call the “lens of ecological law.” The lens consists of three principles drawn from a growing body of scholarship (primarily by Klaus Bosselmann, Cormac Cullinan and Geoffrey Garver). The principles are:

  • Ecocentrism – Recognize and respect the value of all beings and their interconnectedness, equitably promoting the interests of human and nonhuman members of the Earth community.
  • Ecological Primacy – Ensure that social and economic behavior and systems are ecologically bounded, respecting Planetary Boundaries.
  • Ecological Justice – Ensure equitable access to the Earth’s sustaining capacity for present and future generations of humans and other life, and avoid the inequitable allocation of environmental harms.

My interest in the Juba Wajíín case stemmed from the idea that there may be important synergies between ecological law and Indigenous rights and legal orders. Some Indigenous scholars argue that interconnectedness and strong environmental stewardship are common features of Indigenous legal orders. Also, there are numerous statements from Indigenous peoples worldwide about their relationship with the environment, like the Universal Declaration on the Rights of Mother Earth. I therefore wondered what we could learn about the challenges and opportunities for adopting an ecological law paradigm, in particular regarding mining in Mexico, by seeing this case through the lens of ecological law.

The main conclusion of the analysis is that the Mexican Mining Law provisions regarding mining concessions challenged in the amparo are inconsistent with the principles of ecological law. 1) The pre-eminence given to mining over any other land use is profoundly anthropocentric. 2) Large-scale mining can hardly be viewed as an activity that is ecologically bounded. 3) It is clear that prioritizing mining for up to 100 years over subsistence use by communities and other beings is not conducive to inter-generational, intra-generational and inter-species equity.

In terms of synergies, seen from this case, Indigenous rights to territory, consultation and self-determination, actually seem to align only tenuously with the principles of ecological law (underscoring the caution against essentializing Indigenous peoples). There is no clear connection with the principle of ecocentrism. From the perspective of ecological primacy, one can argue that the Júba Wajíín settlements and their traditional farming and harvesting activities are more in line with ecological limits than the large-scale open pit mining proposed. Finally, there is a somewhat stronger tie to ecological justice, as the amparo raises issues of intra- and intergenerational equity that would result from the loss of access to and destruction of the land on which the community depends for their livelihood. Yet, the third element of ecological justiceinter-species equityis not addressed in any way.

An ongoing struggle

The case made its way to the Mexican Supreme Court. However, in November 2015, the company holding the concessions abandoned thempresumably to avoid review of the constitutionality of the Mining Law by the Supreme Court. The court indeed stayed its review of the case because the contested act no longer existed. The Júba Wajíín community freed its territory of those mining concessions, but the law remains unchanged and others may be granted. Indigenous communities have vowed to protect their territory and ensure their rights are respected, so other amparos may follow. If they succeed in challenging the Mining Law, it will be a momentous gain for Indigenous rights in Mexico, and perhaps a step in the direction of ecological law.

Give Peas a Chance

By: Angela Lee

Whether you’re splurging on avocado toast or simply struggling to get enough nutritious food to eat, the bottom line is that what you eat, where it comes from, and how it was produced all matter. As it is becoming increasingly apparent, food is not just a private concern, but rather, has wide-ranging public consequences. Purchasing patterns and market trends are promising signs that people are becoming more aware of the environmental, social, and ethical implications of their food choices, but in light of an ever-expanding population, small-scale voluntarism is clearly not enough. Accordingly, governments and policymakers have a significant role to play in terms of offering the right incentives and disincentives to promote, incentivize, and facilitate more sustainable food production and consumption practices.

Until recently, there has been little by way of systemic efforts at addressing the various and vexing issues related to food production and consumption in Canada. However, in the past year or two, the federal government has launched several initiatives in this respect, with the pinnacle being the National Food Policy led by the Department of Agriculture and Agri-Food. This policy, the first of its kind in Canada, will unquestioningly chart the trajectory of agri-food policy for years to come, by setting both a long-term vision for the health, environmental, social, and economic goals related to food, while also identifying actions we can take in the short-term.

Organizations like Food Secure Canada and the Canadian Federation of Agriculture have long advocated for a National Food Policy, but some remain skeptical of whether such an initiative can live up to its promise. After all, the swath of concerns related to food along every node of the chain – from production through to consumption – are innumerable, and affect each and every Canadian, the privileged and the marginalized both.

Indeed, there are good reasons for skepticism. Barriers to meaningful reform in the agri-food sector have been identified for years now. When it comes to promoting shifts towards more sustainable diets, harmonization needs to occur horizontally as well as vertically in order to ensure coherence among agriculture, health, water, environmental, and trade policies. Yet, fragmentation is still evident today. For example, the recent revision process for Canada’s Food Guide, led by Health Canada, leaves out any considerations about the sustainability of our food choices – a conspicuous absence, given that diets with low environmental impacts are also generally better for our health.

Unfortunately, balancing the priorities and interests of a large and often-divergent group of stakeholders is inherently challenging. However, in a situation that can sometimes seem bleak, the more compelling narrative is one that focuses explicitly on what can be gained by alternative outlooks and approaches. Despite being a challenge to the status quo (arguably, a necessary one), the growing popularity of plant-based alternatives to animal products presents several different kinds of opportunities for Canada.

Though sometimes maligned for ideological reasons, plant-based diets offer compelling advantages. The climate change mitigation potential alone presents a strong case for shifting away from animal products, if one is not persuaded by the health risks and ethical concerns posed by industrial animal agriculture. Further, the sophisticated simulacrums of animal products that are available today are a far cry from the bland veggie burgers and thin plant milks of times past. Embracing plant-based alternatives– if not as outright replacements for traditional animal products, then at least as occasional or supplementary options – can take us one step closer towards addressing the unprecedented global challenges we face today.

Plant-based protein is a key component of many of the alternative products entering the market, and the mounting demand for these kinds of products presents a unique economic opportunity for the Canadian agricultural sector. Canada is a leading producer of pulses—a notably high-protein food group. According to Pulse Canada, “Canadian production of the eight major pulse and special crops (pea, lentil, bean, chickpea, mustard, sunflower, canary seed and buckwheat) increased from about 1 million tonnes in the early 1990s to 5.9 million tonnes in 2015, more than a fivefold increase in 25 years.” By capitalizing on this niche, the Canadian agricultural sector can benefit from this thriving market while concurrently supporting the development of sustainable products from an environmental and human health perspective.

As public consultations get underway for the National Food Policy, it is important that Canadians reflect on the four themes that the federal government has identified as priority issues: increasing access to affordable food; improving health and food safety; conserving our soil, water, and air; and, growing more high-quality food. When supported by thoughtfully designed policies, local, sustainably grown, plant-based food choices can promote each of these goals, while also being delicious, varied, and nourishing. By giving peas a chance, we can challenge unsustainable, unhealthy, unjust, and unethical modes of food production and consumption, while also advancing flexible, realistic, and successful methods and modes of creating change. 

Urban Agriculture

By: Angela Lee

Urban agriculture refers to a wide range of food production initiatives—from growing plants to raising animals—that can occur within cities, whether in backyards, rooftops, community gardens, or public spaces. Although urban agriculture is often small-scale and diffused throughout a city, it also includes larger, commercial operations (for example, producing food in greenhouses).

The concept and practice of urban agriculture is not new, and the Food and Agriculture Organization of the United Nations (FAO) estimates that 800 million people practice urban agriculture worldwide. However, it is important to note that trends and practices in urban agriculture are very different in wealthy, developed countries than they are in lower-income, food-scarce countries, as they are often driven by different concerns. Although the impetus for urban agriculture is often economic, the contemporary popularity of urban agriculture in wealthy countries has surged in recent years, informed in part by the burgeoning food movement, with its emphasis on healthy, local, minimally processed fare. Many cities in both Canada and the United States have either already adopted or are in the process of adopting measures to encourage the growth of this trend. In Canada alone, examples include urban farms in Halifax and Montreal, community gardens in Ottawa and Calgary, the keeping of backyard chickens in Vancouver, and urban apiaries in Toronto.

Certainly, in terms of food security and food justice, urban agriculture can enhance the nutritional health of a community by acting as a source of both food supply and income. Urban agriculture also offers a number of benefits over and above simply contributing to the food supply, including creating jobs, enriching education, promoting environmental sustainability, community-building, and neighbourhood beautification. Even though much of the rhetoric surrounding urban agriculture from within the food movement has been positive, there are also other theoretical and practical issues associated with urban agriculture from a food and environmental justice standpoint that must be considered.

From an environmental justice perspective, the public health and environmental hazards of urban agriculture—and the distribution of such impacts—are of particular concern. For example, even while urban agriculture can reverse the environmental decline of urban areas by creating green spaces and adding organic content to the urban environment, there are a range of problems that can also arise, including nuisance from unpleasant smells or sounds, various sanitation concerns, and threats to biodiversity. Because urban farms and gardens may be located in proximity to industrial or commercial areas, there are also contamination concerns in relation to the food produced, as well as for the workers. The use of chemical fertilizers and pesticides poses especially acute health and environmental threats in densely populated urban environments, where they can easily carry to contaminate the surrounding neighbourhood. The location of urban agriculture sites and the associated risks therefore raises important questions about environmental justice.

Further, the connection between urban agriculture and increased food security is not an uncomplicated given. This is especially the case in relation to urban commercial gardens operating in impoverished, already marginalized urban neighborhoods. Nathan McClintock has argued that urban agriculture can actually function as a form of neoliberalism, by shifting the burden of food production and provisioning healthy food in low-income areas from the state to non-profits and community-based organizations. Other scholars have raised similar concerns about urban agriculture potentially functioning as a form of “ecological gentrification”.

The practice of urban agriculture also raises gendered concerns, especially since women are a traditionally vulnerable, food-insecure group. Although urban agriculture may afford women valuable opportunities, women may also experience challenges and barriers in accessing the land, capital, and other resources they need to be successful. Consequently, in the context of developing countries, Alice Hovorka argues that in order to benefit, rather than burden women, the promotion and support of urban agriculture must take on a specifically emancipatory agenda that challenges structural inequities.

In order to be a viable food strategy, urban agriculture requires ongoing nurturing. As a result, law and policy is highly significant in the context of urban agriculture, because law works directly to help or hinder urban agriculture initiatives, most specifically in the context of zoning and land use policies at the municipal or local level. While the risks associated with urban agriculture undoubtedly require careful regulation, the legalities of urban agriculture practices in Canada can be described as being in a state of confused disarray. It is important that as questions and concerns relating to our food practices become more pressing, our laws and policies keep step. Notably, best practices for urban agriculture should be attentive to the local environment and context, and take into account all nodes of the food system, including production, processing, distribution, consumption, and waste.  

As the interest and importance of urban agriculture increases, multiple avenues for further scholarly inquiry appear, including the intersections between urban agriculture, food security and food justice, and environmental justice. By applying a critical lens to the ongoing and emerging issues related to urban agriculture and other related initiatives, better laws and policies can be crafted to move us closer towards a more just and sustainable food system in Canada.