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.