The right to consultation as a brake on dispossession

[Admin: This decision would seem to be a very important one for indigenous communities facing the imposition of large “development” projects.]

planta-de-amoniaco-protesta-omhpyxwxlihwzb6a9fl06mimxqib0nmpitwpy059qgProtest banner at the ammonia plant reads: “Stop the Ammonia Plant!”

By: Francisco López Bárcenas

Last April 6, the Supreme Court of Justice of the Nation (SCJN) issued a decision on an amparo lawsuit [1] on review (498/2020) filed by the Mayo people settled in northern Sinaloa. It’s not just any decision! Although before this, the highest federal court had already issued other decisions, there are several elements around this one that make it unique. First, because the federal government had decided to support the project that the Gas y Petroquímica de Occidente SA de CV company, a subsidiary of the Swiss-German company Proman, presented in 2013 to install an ammonia plant in Mayo territory. This was demonstrated in the “public consultation” organized last November 28 by the Undersecretariat for Democratic Development, Social Participation and Religious Affairs in the Interior Ministry, headed by Rabindranath Salazar Solorio, who personally directed the job so that it would show the YES vote they wanted.

The consultation had no binding legal effects, but rather political ones, because with the results they hoped to incline the SCJN’s decision favorably towards the businessmen’s proposals. Still last March 3, the president of the Republic, Andrés Manuel López Obrador, showed his support for the company to install the plant, thinking that the YES vote had won in the aforementioned consultation. “We agree, because the people and the farmers of Sinaloa and, Sonora were consulted, and they require fertilizer,” he said. And he continued: “And we have gas as a raw material and we are in favor of that plant, that it is built. Even so, we are not going to achieve self-sufficiency, but now we are going to have more supply of fertilizer.” He didn’t say anything about rights that the Mayo peoples indicate would be violated if the factory is installed, nor about the environmental effects that it would cause.

With that background, many of those interested in the matter hoped that the SCJN would decide to modify the amparo that had already been granted to the complainants, which they obtained by filing the appeal for review. But it didn’t go like that. Upon resolving the matter, the SCJN determined, among other things, that “when it’s about development or investment plans with an impact inside indigenous territory, the State not only has the obligation to consult, but also to obtain the free, informed and prior consent of the indigenous communities, according to their customs and traditions;” thus, the amparo was granted “because it is essential that a free and informed consultation is held with the community prior to environmental authorization of the ammonia plant project, in view of the fact that it could generate significant impacts on their lives and on the environment of the indigenous community complainant.”

Another criterion that was established in the resolution of the highest court expresses that: “the State must guarantee the indigenous peoples their participation in the process of evaluation and authorization of environmental impact studies, due to their knowledge regarding their habitat […] to determine the real magnitude of an effect or incidence on their territory and the eco-systems that are found there.” In the same way it determined that: “the duty of consultation does not depend on the degree or level of affectation, but rather on the character of the recipients, since these communities are the ones that are best positioned to determine the real magnitude of an affectation or incidence on their territory and the ecosystems that are found there. Consistent with the foregoing, any development project that impacts indigenous territories, will have to meet those requirements.”

The decision has surely made investors and politicians involved in the project uncomfortable; they thought that the presidential will was enough to go ahead with their plans. But no. Law and rights also count when there is the will to enforce them. Now it’s up to the Ministry of Environment and Natural Resources (Semarnat) and the National Institute of Indigenous Peoples (INPI) to carry out the judicial mandate of holding prior, free, informed and culturally adequate consultations in good faith, as international law mandates.

The governor of Sinaloa, Rubén Rocha Moya, has already come out to ask for a “vote of conscience” from members of the Mayo people when this process is carried out. It’s not known what he meant by that, but the same request could be made by the peoples affected by the project to the authorities and businessmen interested in their project moving forward. A little awareness of the fact that the peoples have the right to a better future could be the beginning of an understanding.

[1] An amparo lawsuit is similar to an injunction in the US in that it seeks to stop an action that causes harm to the party filing the lawsuit. 

==Ω==

Originally Published in Spanish by La Jornada, Thursday, April 14, 2022, https://www.jornada.com.mx/2022/04/14/opinion/015a1pol and Re-Published with English interpretation by the Chiapas Support Committee

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