Legal earthquakes and the struggle against Mining in Mexico

October 19, 2018 1 By Duncan Green

Curse of wealth? Gold and Silver mines in Mexico

Second post from a great visit to Mexico last week to launch the Spanish language edition of How Change Happens.

Few things get development folk fired up as much as mining. For many NGOs and grassroots organizations, not much has changed since the Conquistadores: mining is plunder. Given their long history in terms of pollution, community division, and human rights abuses, mining companies should stay away.

I’m not one of those people. What about Botswana’s ability to turn diamonds into development? Or Malaysia? But I had to put those objections aside on my recent trip to Mexico, during a brief and fascinating immersion in a world of indigenous struggle and lawyers in Oaxaca. The visit brought home to me the pivotal role of the law, and the reasons for opposing mines.

First the law. In Oaxaca, it feels like a parallel system to politics and economics. Not totally divorced of course – politicians and big money can still influence the courts – but there is also significant autonomy; the legal system in Mexico has been making progress, even when economics and (maybe) politics was going in the other direction.

One big victory came in 2013, when the Supreme Court ruled that any international human rights treaties signed by Mexico had the same legal status as the constitution. And there are a lot of them – Mexico has always seen itself as an international good guy, a refuge for those fleeing persecution since the days of the Spanish Civil War and Latin America’s military dictatorships. That meant it signed on to more international human rights treaties than almost any other government.

What’s more, Mexican politics is highly constitutionalist – ‘if it’s not in the constitution, it doesn’t exist. They need to see which article you are talking about’, said one indigenous human rights lawyer.

The result is a potential legal earthquake, and the caseload is building – you can now take the Mexican government to court for violations of any number of international treaties.

That ruling is part of a steady growth in the role of legal activism, especially with regards to Mexico’s indigenous peoples. People put the start down to the Zapatista uprising of 1994, which raised awareness of Mexico’s apartheid-like ‘indigenous problem’. Recognition of indigenous rights followed in a series of agreements, (not always implemented, such as the San Andrés Accords), with a key focus being that in the indigenous world order, collective rights are often as, or more, important than individual ones.

The law is well ahead of practice, but that creates all sorts of avenues for putting pressure on the state – it all reminded me of a conversation with a Spanish lawyer a few years ago, who told me ‘You must understand, the state sees the world through the eyes of the law’.

But what everyone from human rights lawyers to community leaders stress is that this only works when pressure from the law is matched by pressure from grassroots social movements.

So we headed off to look at what is happening on the ground, in the endless skirmishes between mining companies and indigenous communities. We arrive at the indigenous community of San Jose del Progreso through great white lifeless mounds of tailings from a big Canadian-owned gold and silver mine on the edge of town (Fortuna Silver Mines Inc). We talk to Don Chico, one of the leaders of a besieged band of opponents of the mine – the Coordinadora de Pueblos Unidos del Valle de Ocotlan. In the community hall where I meet Don Chico, there is a shrine to a leader shot dead in 2011 by gunmen on the road we have just driven down. The culprits are already out of jail and even worked as guards for the local mayor.

Don Chico’s tale is familiar from any number of natural resource conflicts around the world. The municipal and indigenous leaders did a deal with the company behind closed doors, so the mine and the state could then say they had the green light through consultation. When the rest of the community found out, there were protests and fights (‘there was blood’). ‘We asked to see the agreements, and they always said ‘they’ll soon be ready – they’re just being drafted’. But we’ve never seen anything’. Since then ‘it’s changed. After 3 or 4 years, everyone could see the jobs, see others driving trucks, making money – people started to leave us.’ Community cohesion has been destroyed – Don Chico is still not talking to his sister, who joined the pro-mine faction.

‘We are in the ruins’, he concludes. Now he just wants to warn other communities not to follow San Jose’s path to pollution (he says the dust from the mine is killing the crops), falling water levels and social division. ‘People think the mine will make us powerful, but that’s only true for a few people.’

That link between mining and inequality is the subject of a new Oxfam Mexico report (in Spanish), Minería y Privilegio.  One of the main points the report makes is that the current legal framework grants a “public utility” and “prominent economic activity” status to mining; this gives the mining companies privileged access to natural resources, such as free and unrestricted use of water, creating an in-your-face inequality compared to the restrictions imposed on small-scale farming communities. Oxfam Mexico’s 2015 Extreme Inequality report, highlighted how the four richest people in the country – three of whom own a mining company –  made their fortunes in sectors that had either been privatized, licensed and/or regulated by the Government – such as mining –  thanks to tax breaks and the lack of regulation.

Don Chico, credit: Oxfam Mexico

One of the communities Don Chico has been warning is Santa Catarina Minas, a 15m drive away. Oddly, given its name, Santa Catarina has no mine and wants to keep it that way. We meet 15 community leaders in the ‘Centro de Bienes Comunes’ (the local agrarian authorities’ office), a cool hall in the midday heat, with a big mural of the iconic image of Zapata, in big hat and Mexican sash and his battle cry ‘Tierra y Libertad’ (land and freedom). Over and over, they repeat the slogan ‘no a la mina’. ‘We have another way of life – we’re doing fine.’ That way of life seems to involve a lot of eating and drinking – we munch our way through bags of tasty fried grasshoppers, then get a guided tour of one of the many ‘palenques’ – stills fermenting the maguey cactus into tasty varieties of mezcal. Mezcal production, along with a lot of greenhouses and agro-industry, is leading to a fall in outmigration and creating viable alternatives to letting in the mines.

‘If the mine comes, 2 or 3 people get rich, everyone else loses. We’ll end up fighting – we want to live as brothers, united. What’s the point of jobs and income if it destroys our community?’ Santa Catarina is planning to join a growing number of communities declaring themselves ‘mining free’ to try and prevent the kind of foot in the door/divide and rule tactics that caused such division in San Jose Progreso.

Last week, Oxfam Mexico published two reports (in Spanish): Minería y Privilegio links Mexico’s dependence on mining with its severe levels of inequality; Implementación de la Consulta y Consentimiento Previo, Libre e Informado discusses the system of community consultation and the role of FPIC.

Special thanks to Roberto Stefani for help with this post, and with my visit.

And here I am saying some of this into my phone in Oaxaca