- The company seeks to evade its obligation to comply with the resolution of additional measures dictated by the Semarnat to protect the healthy environment and the interrelated rights in favor of people, as stated in the SCJN ruling.
- The Mexican State, through its jurisdictional bodies, must rectify the course in the lawsuit filed by the company and make clear its rejection of corporate capture.
- It is urgent to resolve the appeal filed by the community of Bacanuchi in January 2023 against the resolution of the investigating magistrate Rosalva Bertha Romero Núñez of the Federal Court of Administrative Justice (TFJA) who determined to suspend the additional measures in favor of the mining company, protecting its patrimony.
Background
Buenavista del Cobre of Grupo Mexico (BVC) built a new mega mining tailings dam, 51 thousand times larger than the one spilled in 2014, which affected the human rights of more than 22,000 people from 8 municipalities, who have not had access to justice and reparation and were not consulted about the new project at the time.
Regarding that project the community of Bacanuchi filed an injunction in 2016 that went all the way to the Supreme Court of Justice of the Nation (SCJN). On September 05, 2018 the SCJN resolved the amparo in review and in communication No. 105/2018 titled Second Chamber grants Amparo to the Community of Bacanuchi against the Construction of a Mine Tailings Dam it stated:
“In resolving the amparo on review, the Ministers considered that the members of the community of Bacanuchi should have been consulted prior to the issuance of the authorization granted to build and operate a mining tailings dam, in order to comply with the obligation to promote, respect, protect and guarantee human rights. The Second Chamber of this High Court concluded that the right to participation provided for in the Political Constitution of the United Mexican States and various international treaties is not restricted to participation in political matters, but includes the possibility of influencing the discussion of environmental policies and projects, especially when these affect citizens. This, given the precedent of the spill that occurred in that region”.
The Court determined that the failure to consult the inhabitants of the Bacanuchi community prior to authorizing BVC to build and operate the tailings dam, regardless of the provisions of environmental legislation, violated the community’s right to participate in matters that affect or may affect their right to a healthy environment. The Court took into account that the purpose of the project was the storage or final disposal of the tailings, which are solid waste generated in the primary operations of separation and concentration of minerals, considered a hazardous waste by NOM-052- SEMARNAT.
NOM-052- SEMARNAT-1993, and therefore the right to consultation and participation in all phases of planning and development of a project that may affect the territory in which they live, as well as other rights essential for the survival of the community, must be guaranteed.
In July 2020, while complying with the ruling, the environmental authorities issued a resolution in which they responded to various issues raised by the community and imposed additional preventive measures on the company.
Likewise, Profepa in Sonora initiated in 2019 an administrative proceeding against Buenavista del Cobre, S.A. de C.V. for alleged violations to the environmental regulatory framework.
Company’s reaction
The company alleged that there was an excess in compliance, since the sentence was not intended for the environmental authorities to impose additional prevention measures to those established in the authorization of the tailings dam, and further said that, the additional measures were imposed without stating the reasons for their necessity, given that the preventive report already complied with the requirements established in NOM-141-SEMARNAT-2003.
The company’s arguments were ruled unfounded by the Ninth District Judge in Sonora, who is in charge of the compliance with the SCJN’s ruling.
On September 28, 2020, while the amparo ruling was being enforced, BVC filed an administrative lawsuit against Semarnat for the additional measures that were imposed, arguing that the ministry had no authority to impose such measures and that they lack scientific support, since they are all derived from the “concerns” of the Bacanuchi community, whose members are not experts in environmental matters. All of the above, acting with opacity by not calling the community to a trial. It should also be noted that the right to participate in environmental matters protects all people affected or who could be affected and is not a privilege for experts.
Likewise, the company requested the (TFJA) a precautionary measure consisting of suspending the execution of the Semarnat resolution, that is to say, that it not be forced to respect the additional measures to protect the right to a healthy environment of the Bacanuchi community, until the administrative trial is concluded, specifying that, not granting the suspension would cause serious patrimonial and economic damages, since among the measures imposed, there was the obligation to build and operate, work and carry out monitoring, among others.
Against the rights of the affected community
On February 19, 2021, Rosalva Bertha Romero Núñez, judge of the TFJA, granted the definitive precautionary measure to the company, so that it is not obliged to comply with the prevention measures imposed by the Semarnat, since otherwise it could cause an economic damage, since although the measures are intended to guarantee in favor of the community the human right to a healthy environment, they are not urgent and do not affect the repair of any environmental damage already caused; Therefore, paralyzing them or not obliging the mining company to respect the resolution of additional measures would not contravene the public order or the social interest, according to the magistrate’s arguments.
Community request
In January 2023, the community of Bacanuchi filed an appeal against the resolution because the magistrate did not take into account the precautionary principle in environmental matters and made a deficient interpretation regarding what should be understood by public order and social interest, omitting to consider that the resolution of measures was in compliance with a SCJN ruling that seeks to protect the environment, health and life of a community, as opposed to the request of a mining company that seeks to protect its patrimony. This was what weighed most heavily in the TFJA’s actions.
The Bacanuchi Community and the undersigned call for a favorable and urgent resolution of the appeal, protecting the public and collective interest, adhering to respect for institutions and laws, as well as all human rights, and that it remains as an example of impartiality and objectivity on the part of Mexican institutions and jurisdictional bodies, showing a clear rejection of the corporate capture of the State.
Rio Sonora River Basin Committees – For Justice, Reparation and Non-Repetition
Project on Organizing, Development, Education and Research (PODER)
See published original version in Spanish here.