Dear Clients and Friends,
On March 3rd, 2023, a couple of new judicial criteria were published in the Mexican Federal Judicial Weekly regarding the obligation to carry out a prior consultation with Indigenous peoples residing inside or near areas that will be designated for the development of any industry.
In general terms, the prior consultation is a process that seeks to obtain the free, prior, and informed consent of Indigenous peoples and communities before carrying out any activity or project that may affect their territory, rights, and culture.
The first judicial standard issued by the Second Chamber of the Mexican Supreme Court, provides that the prior consultation must be carried out if a “mere possibility of affectation or incidence” on the rights of indigenous peoples and communities exists, meaning that it is not necessary to wait until a specific damage or a significant impact on their rights has occurred in order to carry out the consultation, but the possibility of this occurring is enough.
The second issued judicial standard provides that the prior consultation is required in the case of environmental assessments and authorizations for any kind of projects, works or activities that may impact the environment or way of life of indigenous peoples and communities, which means that before carrying out any activity or project that may affect indigenous peoples and communities, a free, informed, culturally-appropriate and good faith prior consultation must be carried out.
Accordingly, we can determine that prior consultation must be carried out in a free, informed, culturally-appropriate and good faith manner, which implies that indigenous peoples and communities must have access to relevant information on the project or activity that may affect them in a language and format that they can understand, respecting at all times their way of life, traditions, and cultural values.
Likewise, the principle of good faith implies that coercive or deceptive tactics should not be used to obtain the consent of indigenous peoples and communities.
Should you have any questions or comments regarding the foregoing, please do not hesitate to call your usual contact at the Firm.
Mining Practice
Lic. Pablo Méndez Alvídrez / [email protected]
Lic. Alejandro Guerra Herrera / [email protected]
Lic. Jorge Alberto Hernández Ogaz / [email protected]
Lic. Kevin Daniel Rico Motis / [email protected]
Lic. Yasmín Andrea Gutiérrez Lerma / [email protected]
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