• SCJN Grants Amparo Against the Construction of Mine Jales Dam by Omission to Previous Consultation
  • November 6, 2018
  • In a session held on September 5, 2018 and by judgment published in October of this year, the Second Chamber of the Supreme Court of Justice of the Nation (" SCJN "), by majority vote, decided to grant the amparo to the community that lives in the areas adjacent to the Sonora and Bac├ínuchi rivers, against the omission on the part of the Secretariat of Environment and Natural Resources (" SEMARNAT ") to guarantee the realization of a public consultation, as part of the procedure to grant an authorization of environmental impact for the construction and operation of a mine tailings dam in an area adjacent to Cananea, Sonora.

    During the project approval process, it was considered that the presentation of an environmental impact statement (which contemplates a stage of public consultation) was not necessary because it was a project that only required a preventive report for approval, in accordance with the NOM141-SEMARNAT-2003 that regulates the impacts of the work. In this sense, the applicable legislation released the burden of having said manifestation and, therefore, of the consultation.

    However, the Supreme Court considered that despite the fact that the project developer and the authorities acted in accordance with the applicable regulation for obtaining the respective permit, in accordance with human rights to a healthy environment, to health, and Right to the prior and informed participation of the complainants, the members of the Bacánuchi community should have been consulted, before the environmental authorization for the construction and operation of the dam was issued.

    With this decision, the Supreme Court sets a precedent that could be applied directly or by analogy. It issues a novel pronouncement on whether, prior to the issuance of an authorization for the realization of a project with possible environmental impacts, despite the fact that the legislation exempts this previous step, the right of the effective participation of the adjacent villages should be guaranteed. they may be harmed by it, which could be interpreted against the provisions of the special law on the matter that regulates the environmental impact in Mexico. If it becomes an obligation, this requirement could generate additional processes for the implementation of projects, due to social or political issues. Additionally, it can generate uncertainty for the development of new projects,

    By virtue of this criterion, companies that intend to develop similar projects should foresee the possibility that SEMARNAT should carry out a public consultation before the communities that could be considered affected during the process of granting the required environmental impact authorization.