April 23, 2021

Mexico's Lower House Approves Bill on Indigenous and Black Mexican People's Consultation Law

Holland & Knight Alert
Alejandro Landa Thierry | Carlos Ochoa | Aldo González

On April 20, 2021, the House of Deputies of Mexico voted on, and approved, a bill to enact the General Law of Consultation of Indigenous and Black Mexican People's Law and submitted the proposed bill to the Senate for review and voting.

The purpose of the law is to establish the right to prior consultation in favor of indigenous and Black Mexican people and communities in the face of governmental measures that may affect such groups, their ways of life, their social, political, economic and cultural organization, and the integrity of their lands, territories and natural resources.

The bill is based on the provisions of Article 2, section IX(B) of the Mexican Constitution, which establishes the obligation of Mexican authorities to consult people and communities when implementing institutional and public policies to protect their rights.

The bill includes a series of declarations and sets forth several principles and standards that need to be satisfied with respect to consultations made to peoples and communities. Generally, all consultations must take place prior to implementing any legislative or administrative measure that may affect peoples and communities. Further, all consultations must satisfy the principles of freedom, information, cultural adequacy and good faith.

The governmental measures that must be subject to a prior consultation include the issuance or procurement of governmental authorizations, including permits, licenses, and studies (e.g., feasibility or environmental studies). Consequently, any infrastructure project requiring governmental authorizations that may affect peoples and communities may be subject to a prior consultation under the bill.

The bill states that the people and communities are legal persons as a matter of public policy. Any Measure that is implemented without prior consultation, where applicable, may be deemed null and void under the bill.

I. Types of Consultation

The bill includes two general types of prior consultations for people and communities:

  • consultations where a consent form from the people and communities must be obtained with respect to specific measures
  • consultations where such consent form is not mandatory with respect to a measure

A consent by the people and communities shall be required with respect to a given measure in any of the following scenarios:

  • projects or programs that impact lands, territory, or natural resources of people and communities, in particular those related to the use and exploitation of mineral, water, wind and genetic resources
  • measures that require the displacement or relocation of people and communities
  • the possible dispossession or harm (afectación) to any cultural, intellectual, religious, and spiritual good necessary for the people and communities’ physical and cultural survival
  • the storage and disposal of hazardous materials in the lands and territories of people and communities
  • "any other" [measure] that represents a material impact

II. Parties to the Consultation Process

  • People and Communities: These are persons represented by ad hoc bodies in each case and according to the customs and agreements of the consulted persons.
  • Responsible Authority or Body: This is any institution of the Mexican State, including autonomous public bodies, responsible for "issuing or taking administrative or legislative action susceptible to affect the people and communities."
  • Technical Body: This is any institution of the Mexican State in charge of "matters related to indigenous and Black Mexican people and communities." This body determines the methodological design for the implementation of the consultation process. This body is in charge of declaring the validity of the consultation, and such decision is binding to the responsible authorities and the affected people and communities. In all federal matters, this body shall be the National Institute of Indigenous Peoples (Instituto Nacional de los Pueblos Indígenas or INPI).
  • Guarantor: In all federal matters, it shall be the National Commission of Human Rights (CNDH), and in all local matters, the guarantor shall be the applicable state commission of human rights.
  • Follow Up and Verification Committee: It is composed of members of the consulted people and communities and other parties’ consultation process (responsible authority and technical body).
  • Inter-institutional Technical Committee: The parties may request to form this committee when several responsible authorities are involved in the measure and the consultation process.
  • Technical Advisory Committee: It is an optional body that the parties may assemble to seek advice on specialized or particular matters related to the measure or the people and communities.
  • Observers: Observers are independent persons who may be invited to the process as observers.

III. Results

A consultation may have the following possible results:

  • acceptance (consent) or rejection with no conditions
  • acceptance with conditions
  • rejection, with the possibility of submitting a revised or new measure, provided that a new consultation is required
  • issuance of opinions, proposals and recommendations (for measures that do not require mandatory consent)

IV. Consultation Process

The consultation process has six different stages, and it may be commenced 1) by request of the people or community to a responsible authority, 2) by a technical body or 3) via an order by a responsible authority. The stages are:

  • Preparatory Stage
  • Initial Agreements: Initial agreements define the scope, protocol and rules of the consultation process.
  • Informative Stage: The responsible authority provides all relevant information regarding a measure to the people and communities.
  • Deliberative Stage: The people and communities internally review and discuss the information provided regarding the measure. During this stage, responsible authorities may not cause any interference or conduct unsolicited communications with the people and communities. Extra-official visits to a community are not allowed. All communications between the parties must be in writing and permitted (e.g., to request additional information) under the rules of the process.
  • Consultation Stage: The parties reach definitive agreements with respect to the consultation matter. The decision is documented in written minutes kept by the responsible authority (with a copy for the other parties). All parties must sign the minutes.
  • Agreement Follow-Up: The Follow-Up and Verification Committee oversees compliance with the agreements.

The bill does not include express provisions regarding incentives for people and communities’ direct involvement in specific projects or establishes structures of co-ownership, stakeholdership or collaboration for joint communitarian or economic development.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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