On March 16, 2017, the Federal Administrative Court of Mexico detained the second most important gold mining project in Mexico, “Los Cardones”, in a protected natural area in the municipality of La Paz, in the peninsula of Baja California. The project was awarded to Desarrollo Zapal, a subsidiary of the Canadian company Invecture Group Inc., which is a subsidiary of the transnational Frontera Mining Company, and was intended to extract one million 400 thousand ounces of gold in a period of 10 Years, through an investment of 1.2 billion dollars. This is not the first time that the “Los Cardones” project is stopped, but it is the first time that a federal judge determines the indefinite suspension of the exploitation works. Earlier, mine suspensions had been issued by state and municipal authority provisions, denying local permits, but now there is the possibility of definitive cancellation.
The federal judge who cancelled the project acknowledged that the company Desarrollo Zapal distorted information about the environmental impact study of the project submitted to the Ministry of the Environment and Natural Resources, thus accepting the demand of FRECIUDAV.
The cancellation of the project "Los Cardones" is the result of 22 years of intense social struggle, since 1995, the Canadian company Gold Corp presented the project called "Paredones Amarillos", which after four years was rejected by the local authority of La Paz, after the demand of the civil society. Then in 2010, the same Canadian mining company again insisted on obtaining permits for the exploitation project, changing the name of the project to "Project Concordia", which was also rejected by social groups and by the state government, after considering the serious environmental impact. Later in 2011, Vista Gold again presented the project under the name "Los Cardones", and sold it in 2013 to the Canadian company Invecture Group Inc., which, through the support of the subsidiary Desarrollo Zapal was able to reactivate the necessary permits of the local, state and federal governments to continue with the management of the project, and present the controversial Manifestation of Environmental Impact to the federal government. The opposition of the environmental social groups was then concentrated in the FRECIUDAV.
This case is investigated by the Autonomous University of Baja California Sur, under the supervision of Juan Manuel Otero.
Previous Consultation and Negotiation for the Use of The Land Destined to Energy Industry
In the year 2013, a constitutional reform was enacted in Mexico, which radically transformed the exploitation of the land destined to the energy industry, meaning, hydrocarbon’s exploitation or the electric sector, specifically the transmission and distribution network and electric energy generation.
It would take one more year before Mexico had the first legal instruments and acts in order for the constitutional reform could be enforced (at least partially). For the time being, we refer to two acts: The Electric Industry Act (Ley de la Industria Eléctrica) and The Hydrocarbons Act (Ley de Hidrocarburos), in which a series of mechanisms are introduced for previous consultation and negotiation regarding the exploitation of the land, mainly, in direct relation with the Ejidos (According to The Agrarian Act (Ley Agraria). The Ejidos are regarded as legal persons, have patrimony, and own the land endowed or acquired by any other title. They have their own internal social and economical organization as their own bodies of government without any other limitation but those imposed by the law) and the ethnics or indigenous peoples.
It is important to point out that, in Mexico, as a consequence of the revolutionary movement of the early 20th century, which gave us our current constitution in 1917, established in its article 27 an special legal regimen for the social property and a series of warranties and rights regarding that legal status, creating the Ejido institution. In the year 2000, another constitutional reform to the article 2 meant that the Mexican State fully acknowledged the multicultural origin of the Mexican people, granting a special legal status to indigenous people as native people and occupants of the land prior to the Spanish conquest and colonization.
The objective of this research will be to submit a general depiction of how previous consultation and mediation are enforced in the energy industries. Furthermore, the demands for intervention of several agents, not only inside the Public Administration, public agencies, State’s Productive Enterprises (In Mexican Law, The Empresas Productivas del Estado, have a special legal regime, different from decentralised bodies), Ejidos and indigenous peoples, in order to assure the full respect of their rights and warranties.
The public interest is more than evident regarding the energy industry and its development, but also must account several other factors such as environmental impacts, remedies, economical and social impacts of these projects, specially for the Ejidos and indigenous peoples, if their property is to be used for energy industries.
Take notice that, due to the recent of the constitutional reform and legislation on the subject, it is not possible to study this on a case-based methodology, because those consultation and negotiation procedures are still in the process of been regulated through bylaws and operative policies, prior to their application, also, combining the institutions of both private and public law.
This case is investigated by the Universidad Panamericana, sur under the supervision of Luis José Béjar Rivera, Juan Manuel Otero Varela and Carlos Alberto Villanueva Martínez.