Prior consultation of indigenous groups in Mexico for development projects and environmental impact

On March 3, 2023, jurisprudences 2a./J.10/2023 (11ª.) y 2a/J. 11/2023 (11ª.) (the “Jurisprudences”) issued by the Second Chamber of the Mexican Supreme Court of Justice of the Nation (“Second Chamber of the SCJN”) were published in the Judicial Semanary of the Federation regarding the human right of prior consultation of indigenous peoples and communities in relation to the granting of Environmental Impact Assessments for development projects.

By means of the Jurisprudences, the Second Chamber of the SCJN held that: (i) the mere possibility of affecting (positively or negatively) an indigenous community through a development project makes it necessary that such community is previously consulted, regardless of whether or not the authorizations issued by the administrative authorities in matters of environmental impact are considered as act depriving of rights; (ii) the environmental feasibility of a development project does not substitute the duty to consult; (iii) in the case of development projects that have a “high degree of impact” on indigenous communities, it is not sufficient for the environmental authority to carry out prior consultation, but rather the consent of the community must be obtained, and (iv) the right to prior consultation should not be considered as a veto right that indigenous communities have to deny environmental impact authorizations, but rather it represents an exercise of participation with respect to projects that could affect the environment in which they are located.

Given the content of the Jurisprudences, it is necessary to consider within the real estate development market that there may be Environmental Impact Manifestations that have been issued without having carried out the corresponding prior consultation, which could represent a risk for developers who are executing works.

In view of this scenario, the criteria sustained by the Second Chamber of the SCJN when ruling on the appellate amparo revision (amparo en revisión) 16/2022, may offer an alternative to mitigate the risk of having an Environmental Impact Statement issued after the indigenous consultation, since it refers that a subsequent consultation may, depending on the circumstances, remedy the noncompliance related to the omission to carry out prior consultation, provided that such subsequent consultation complies, among others, with the guidelines set forth in Convention Number 169 of the International Labor Organization on Indigenous and Tribal Peoples.

It should be noted that the Jurisprudences do not establish parameters to determine in which cases a territory is or is not considered to be part of the area of an indigenous people or community, since it is not specified, for example, which dimensions and/or territorial perimeters imply an impact on an indigenous people or community. Consequently, each case will have different specifications and/or requirements to comply with the Jurisprudences, hence we consider that a timely approach should be made with the administrative authorities in order to: (i) determine the existence of indigenous peoples or communities in the area corresponding to the project; and (ii) determine the steps to be followed to carry out the prior consultation.