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I. Introduction
Ecological law is an emerging approach to law that seeks to constrain economic activities within ecological limits, restore and protect ecological integrity, and promote ecological justice.1 It has arisen in response to the inability of environmental law to adequately address the deepening ecological crisis,2 and is part of a move away from the dominant growth-insistent economic model to an economy that operates within the planet’s biophysical limits with much reduced material-energy throughputs and ecological footprints.3 Also, ecological law is part of a shift to a different concept of the relationship of humans among themselves and with the Earth.4 It is an alternative to environmental law -a paradigm shift- rather than a call for its reform.5 As one of the key components of the current growth-insistent economy,6 mining will need to undergo a profound transformation if it is to contribute to a new ecologically-bounded economy and to ecological justice.7 A critical component of this is the role of indigenous communities in deciding whether and how mining takes place in their territories.
Indigenous peoples are increasingly being affected by mining activities in their territories.8 At the same time, they are gaining the recognition of their rights in international law9 and in a growing number of national constitutions, like the Mexican one.10 This generally includes the need for the free and informed consent of indigenous peoples before carrying out activities that affect their territories.
Mexico has a long history of mineral exploitation, but mining activities in the country have increased dramatically over the past fifteen years.11 This is primarily due to neoliberal policies that enable foreign investment in the sector12 and to technology that has greatly enhanced extraction capabilities.13 Conflicts in connection with extraction projects are also on the rise,14 accompanied by the criminalization of dissent.15
According to the official estimate, approximately 12.5% of the country was subject to a mining concession in 2015,16 while other sources report it at 30%.17 It is thought that 17% percent of indigenous territory is subject to mining concessions.18 In the State of Guerrero, new discoveries of mineral deposits have pushed the number of concessions to approximately 600.19 While these figures may seem high to some, a government publication that promotes business in Mexico writes that “[t]he Mexican territory occupies 1,964,000 km2, of which 70% has geological suitability for development of mining projects” 20 but that “only 27% of the national territory has been explored.”21 Critics instead note that “[t]he unprecedented rapaciousness with which the extractive model in Mexico threatens collectively owned lands and peoples far out measures colonial times.”22
Since 2013, four indigenous communities in Mexico have initiated amparo trials23 seeking constitutional protection against mining concessions that allegedly violated their constitutional rights. These amparos have significant implications for indigenous rights in Mexico. The analysis that follows, however, explores the relationship of these cases to the new legal paradigm that is ecological law.24
II. The “Lens of Ecological Law”
To improve the understanding of the implications of a shift from existing law (primarily, but not exclusively, environmental law) to ecological law I have built on existing scholarship25 and propose a lens of ecological law with which to analyze the major affinities and inconsistencies between the laws in place26 and ecological law. This lens is formed by three interconnected principles that inform the objectives of ecological law and help advance it as an alternative to environmental law. This is based on the general definition of the term principle as “a fundamental truth or proposition that serves as the foundation for a system of belief or behavior or for a chain of reasoning.”27 As for the objectives of ecological law, in my view these can be summarized as 1) constraining the economy within ecological limits, 2) restoring ecological integrity, and 3) enabling an ecologically just society. These principles are drawn from a growing body of scholarship, in particular the features of the “rule of ecological law” as defined by Geoffrey Garver.28 Ecological law is an emerging approach to understand and imagine law, so these principles are only proposed as tentative contributions to its evolving theory. They are as follows:
1. Ecocentrism: To Recognize and Respect the Value of all Beings and their Interconnectedness, Equitably Promoting the Interests of Human and Non-Human Members of the Earth Community
Ecocentrism primarily illuminates the law’s ability to support and promote a worldview in which humans are part of nature and no more important than other life forms and systems. It also guides the law in preventing decisions that disregard ecological consequences and lean towards short-term human interests. The focus of this principle is relational and conceptual: it centers on the view and understanding of the human-Earth relationship underlying the law.29Ecocentrism sets a strong basis for the other two principles.
As understood here, the principle of ecocentrism corresponds to the first feature of Garver’s rule of ecological law: “recogniz[ing] humans are part of Earth’s life systems.”30 In requiring that law “recognize and respect the value of all beings,” the principle also implies Aldo Leopold’s land ethic,31 and Thomas Berry and Cormac Cullinan’s Earth rights.32 The requisite to “equitably promote the interests of human and nonhuman members of the Earth community” is meant to invoke the essence of biocentrism/ecocentrism (further discussed below) and the responsibility towards other beings, as in the Earth Charter’s call for “universal responsibility.”33
The proposed principle includes the acknowledgment of the relationship that humans have with other beings as part of the web of life, through the notion of interconnectedness. As noted, interconnectedness is often present in indigenous worldviews and legal traditions.34 However, the recognition of interconnectedness does not exclude per se anthropocentric approaches that value other life forms and systems based on human interests (in particular utilitarianism). Therefore, the principle of ecocentrism also includes biocentrism, which “articulat[es] a larger philosophical vision in which all life is interconnected and which seeks to promote the interests of human and nonhuman life alike.”35 Combining interconnectedness and biocentrism permits a rich appreciation of the approach to the human-Earth relationship underlying the law. Thus, ecocentrism is not understood here narrowly as “an argument that asserts ecological integrity as the most important moral good or that considers ecological systems as the bearer of ultimate value.”36 It is a broader argument for respect for the Earth community. The value of and need to give primacy to ecological integrity is captured instead in the second principle proposed below (ecological primacy).
2. Ecological Primacy: To Ensure that Social and Economic Behavior and Systems are Ecologically Bound, Respecting Planetary Boundaries
Ecological primacy provides clarity about the need to ensure human development is pursued without irreversibly impairing natural systems or crossing Planetary Boundaries, including precaution about respecting these boundaries. This principle should be understood as targeting the social and economic behavior of individuals, groups, corporations and other legal persons (for example, the acquisition and use of property, family planning, marketing and consumer behavior, etc.), as well as social and economic sectoral and systems behavior (for example, the financial system, the mining sector, etc.).
This principle corresponds to the second and ninth features of Garver’s rule of ecological law, respectively: “ecological limits must have primacy over social and economic regimes;”37 and “requir[ing] precaution about crossing global ecological boundaries.”38 This includes Bosselmann’s principle of sustainability, which he defines “as the duty to protect and restore the integrity of the Earth’s ecological systems”39 because creating ecologically-bound human systems requires that this duty be observed. At the same time ecological primacy also indirectly implies Garver’s fourth feature: “focus on radically reducing material and energy throughput.”40 Such a reduction is needed to achieve sustainability (in the sense Bosselmann gives it) 41 and for creating ecologically-bound human systems. The principle captures the recognition that some ecological limits have already been surpassed and cannot continue to be transgressed without compromising the planet’s life supporting systems.42 The reference to Planetary Boundaries43 highlights the need to respect ecological limits not only of the local ecosystem, but also at a planetary level,44 and implies the need for legal systems to incorporate the growing understanding of complex social-ecological systems.45
Ecological primacy also includes the precautionary principle (in dubio pro natura) with respect to Planetary Boundaries specifically, as in Garver’s ninth feature of the rule of ecological law, and more broadly as a means to prevent harm.46
The concept of ecological integrity is incorporated as a fundamental component of the proposed principle of ecological primacy, while acknowledging its contentious meaning and that the boundaries for its implementation may appear elusive.47 Given the profound complexity of nature, ecological integrity is difficult to measure and defies rigid standardization.48 The Panel of Ecological Integrity of Canada’s National Parks offers the following definition: “[i]n plain language, ecosystems have integrity when they have their native components (plants, animals and other organisms) and processes (such as growth and reproduction) intact.”49 The notion of ecological integrity is adopted here following this general definition, with the understanding that humans are not separate from nature, but part of the native animal components of ecosystems.
Another concept broadly captured by this proposed principle of ecological primacy is the resilience principle. Nicholas Robinson articulates it as follows: “Governments and individuals shall take all available measures to enhance and sustain the capacity of social and natural systems to maintain their integrity.”50 Resilience plays an important role in ecological integrity, so the resilience principle can contribute to building the ecologically-bound behavior and systems enshrined by the principle of ecological primacy.
Ecological primacy is strongly linked with ecocentrism. It is by recognizing the place of humans in the web of life, their dependence and impact on other life forms and their equal intrinsic value that it becomes possible to embrace limits and forego non-essential benefits that may be harmful to the Earth community. In contrast to ecocentrism, ecological primacy has a material focus that aims at bounding material and energy consumption within ecological limits. In turn, this ecologically-bound material basis helps create the conditions for the implementation of the last principle, ecological justice.
3. Ecological Justice: To Ensure Equitable Access to the Earth’s Sustaining Capacity for Present and Future Generations of Humans and Other Life Forms and Systems, and Avoid the Inequitable Allocation of Environmental Harms
Ecological justice provides an ethical grounding for decisions about the equitable use of the planet’s sustaining capacity and the fair distribution of and restraint on wealth. Its focus is relational, but unlike ecocentrism it is so in a practical and material way, aiming to render respect for all beings into actual equitable access to the Earth’s sustaining capacity and the avoidance of the inequitable allocation of harm.
This principle captures the sixth feature of Garver’s rule of ecological law: “ensur[ing] the fair sharing of resources and environmental harms among present and future generations of humans and other life”51 and Bosselmann’s concept of ecological justice.52 As Bosselmann explains, intergenerational and intragenerational equity are “two ethical elements that are widely accepted as being essential to the idea of sustainable development.”53 In contrast, the notion of humans and other species having equal intrinsic value is controversial and is only starting to be recognized in law.54 Bosselmann argues that interspecies equity or “concern for the non-human natural world” is needed along with the moral duties to the poor (intragenerational equity) and to future generations (intergenerational equity) if we are to exclude the “very possibility of destroying the planet’s conditions of life” from humanity’s development paths.55
The fundamental idea behind this triple principle of ecological justice is that the Earth’s sustaining capacity should be used so as to enable humans and other species to sustain themselves today and in the future.56 Moreover, this principle goes beyond fair distribution and implies a society that aims to attain sufficient -not maximum- wealth held collectively and individually. Garver argues that “[t]he focus on sufficient as opposed to maximum wealth implies a limit on inequality of wealth, and that it is possible to be too rich -with the limits established so as to allow for the flourishing of non-human species and ecological restoration.”57
The principle of ecological justice also captures the values promoted by Berry and Cullinan in their arguments for recognizing the rights of other beings through Earth jurisprudence and wild laws.58 At the same time, it allows for other approaches that do not assign rights to nonhumans, like Taylor’s proposal emphasizing the ecological responsibilities and constraints attached to human rights (ecological human rights).59 Finally, the principle includes the concept of environmental justice60 by requiring that inequitable allocation of environmental harms be avoided.
In summary, ecocentrism, ecological primacy and ecological justice are intended together as a tool (a “lens of ecological law”) to critique existing laws in order to better understand what changes adopting ecological law might entail. In the sections that follow, I use this lens to discuss the Júba Wajíín Amparo. First, I briefly introduce the case and its context; second, I present the analysis of the case from the lens of ecological law; and third, I offer a summary of the status of the case and some considerations on its importance. The article then closes with a short conclusion.
III. Indigenous Communities in Mexico Challenge Mining Concessions in Their Territories
Under the Mexican Constitution, the nation owns all minerals, irrespective of surface ownership. The Mining Law further considers mining an activity of public utility and a preferential land use over any other, with the exception of hydrocarbon extraction and electricity transmission.61 Concessions are granted on a first come, first serve basis to qualified Mexican nationals or Mexican companies (which can be 100% foreign owned).62 They include both exploration and extraction rights, as well as guaranteed access to mining deposits, including through expropriation.63 Mining concessions are granted for 50 years and may be renewed for the same time period.64 Some praise the Mining Law for its simplicity and for imposing very few restrictions on mining enterprises.65 For others, like Jaime Cárdenas, “the aims of the Mining Law are incompatible with the Constitution and international treaties.”66 Francisco López Bárcenas further argues that mining law and policy in Mexico have life-threatening implications for indigenous communities.67 The Mexican legal mining regime has also been criticized as “unsustainable legislative nonsense, or blunt corruption and environmental suicide.”68
A growing number of indigenous and agricultural communities in Mexico are taking action to protect their territories from mining projects. San Miguel del Progreso- Júba Wajíín is a Me’phaa (Tlapaneca) community of approximately 3,800 people located in the Municipality of Malinaltepec, Guerrero, which depends principally on cultivating maize, coffee and fruit trees.69
In April 2011, aware of the growing number of mining projects in the region, its governing assembly unanimously decided to reject any mining activity in their territory.70 After confirming the existence of two mining concessions on their lands, in July 2013 the community filed an amparo alleging the concessions violate their constitutional rights to territory and consultation, and challenging the constitutionality of the Mining Law (hereinafter the Júba Wajíín Amparo or the Amparo).
Hundreds of communities in Mexico have declared themselves free from mining and a total of 71 indigenous communities in the States of Puebla and Colima have filed 3 amparos similar to the Júba Wajíín Amparo.71 These amparos have all been admitted by district courts that have imposed injunctions on the concessions in question, pending the resolution of each case. The decisions on these cases could have momentous implications for achieving indigenous communities’ self-determination, as well as other important issues related to indigenous rights in Mexico.72 The effective observance of the rights of indigenous communities to consultation and to territory could have critical implications for mining in indigenous territories. As scholar Anglés Hernández has shown, effective implementation of free prior and informed consent is fundamental for empowering indigenous peoples regarding the use of their natural resources and the protection of their environment in the context of extractive projects in their territories, and more broadly, to counter the systemic exclusion they endure.73 Furthermore, these amparos are of interest from the perspective of ecological law because of the possibility that courts might give precedence to indigenous values ascribing spiritual, ecological and relational meanings to the land and its resources over economic interests seeking to exploit such land and resources for commercial gain without regard to ecological limits.
IV. The San Miguel del Progreso-Júba Wajíín Amparo From the Lens of Ecological Law
1. Main Claims of the San Miguel del Progreso-Júba Wajíín Amparo
The Júba Wajíín Amparo was filed on July 15, 2013, before the Federal District Court in the State of Guerrero. The Amparo74 makes six claims, five of which relate to the concessions and one to the constitutionality of certain provisions of the Mining Law itself. It argues that the act of granting the two concessions under Articles 6,75 10,76 1577 and 19-IV78 of the Mining Law violates the following rights:
The community’s collective right to property of their indigenous territory under Article 21 of the American Convention on Human Rights79 and Articles 13, 15 and 17 of ILO Indigenous and Tribal Peoples Convention No. 169,80 in conjunction with Articles 1 and 133 of the Mexican Constitution.81
The right to integral protection of indigenous lands under Articles 2-A (V), (VI) and 27 (VII) second para., in conjunction with Article 1, all of the Mexican Constitution.82
The right to consultation under Articles 6 and 13 of ILO C169,83 in conjunction with Articles 1 and 133 of the Mexican Constitution.84
The guarantees of legality and legal certainty under Articles 14 and 16 of the Constitution.85
The right to the protection of communal lands both for purposes of human settlements and for productive activities provided by Article 27 (VII) of the Constitution.86
Finally, the Amparo also claims that, in granting the concessions, the authorities applied Articles 6, 10, 15 and 19 (IV) of the Mining Law to the detriment of the community as said articles are deemed unconstitutional and contrary to international conventions because they allegedly violate Articles 1 last para., 2, 25, 27 sixth para., and 28 tenth para. of the Mexican Constitution; Articles 6, 13, 15 and 17 of ILO C169; and Article 21 of the ACHR; all in conjunction with Articles 1 and 133 of the Mexican Constitution.87
2. Analysis From the Lens of Ecological Law
This section reflects on the issues raised in the Júba Wajíín Amparo using the lens of ecological law described above. The objective of this reflection is to test the hypothesis that judicially advancing indigenous rights to territory might also further the interests of ecological law. Thus, it inquires into whether the arguments in the Amparo overlap in any way with the principles of ecological law.
I believe there are synergies between ecological law and indigenous rights and legal orders, and that those synergies should be respectfully discovered and fostered. Numerous statements from indigenous peoples around the world highlight the relationship of indigenous peoples with the environment88 and some indigenous scholars argue that common features of indigenous law include the concept of interconnectedness89 and strong environmental protection values.90 However, one should be mindful to avoid essentializing indigenous peoples by assuming their relationship to the environment is consistent across their diversity91 or by claiming that indigenous peoples are inherently less destructive of the environment than Western industrial societies.92 A further caution is that this article limits the consideration of the potential interactions between ecocentrism, ecological primacy and ecological justice with the worldview of the Me’phaa only to the arguments put forth in the Amparo.
A. Ecocentrism
To recall, this principle calls for law to recognize and respect the value of all beings and their interconnectedness, equitably promoting the interests of human and non-human members of the Earth community. What elements in the Amparo are in line or conflict with ecocentrism?
The Amparo describes the applicants (the Me’phaa people) as for centuries having owned their territories and collectively used the resources of the land while maintaining a cultural link to the “land and habitat in its integrity,” in accordance with their indigenous worldview.93 The Amparo argues that the destructive nature of mining is incompatible with the protection of their territory and their resources.94
A sense of interconnectedness is apparent in these statements, but beyond this there are no other obvious signs of ecocentrism in the Amparo. The claims and arguments put forth are fundamentally anthropocentric. Whether this may be due to the constraints imposed by the types of arguments expected in a legal document such as an amparo brief is an intriguing question, which is, however, beyond the scope of this article.
As for the Mining Law provisions in question, it is clear that the pre-eminence of mining over any other land use is profoundly anthropocentric because the land is valued as a source of mineral resources solely for human consumption. Land uses that seek to fulfill human interests in harmony with the ecosystem (for example, permaculture or polyculture orchards) are more likely to be in line with ecocentrism. Whether and what forms of mining could be in line with ecocentrism remain open questions.95
B. Ecological Primacy
The principle of ecological primacy aims for law to ensure social and economic behavior and systems are ecologically bound, respecting Planetary Boundaries. What can be said of the Amparo from this perspective?
The Amparo states that the open pit silver and gold mining authorized by the concession would “necessarily involve the material destruction of [the community’s] territory and of the use of the natural resources that inhabit [their] land, such as the water, forests, grasslands and other vegetation that make up [their] habitat.”96 As noted, the fifth claim of the Amparo invokes the constitutionally enshrined right to the protection of communal lands for purposes of human settlements and for productive activities.97 The community argues that because Article 6 of the Mining Law gives preferential use of the land to mining over any other use, the concessions granted to the company are incompatible with this constitutional indigenous right.98
Compared to large-scale open pit mining, the Júba Wajíín settlement and the small-scale farming and harvesting activities the community carries out are more likely in line with ecological primacy, especially to the extent that these maybe governed by a worldview that seeks to maintain a balance with the environment. In contrast, it would be hard to argue that prioritizing mining over any other land use reflects ecological rather than economic primacy. Mining inherently disturbs the land on which it is carried out.99 Especially in its increasingly frequent form of large-scale open pit extraction involving large volumes of toxic substances, mining cannot be viewed as an activity that is ecologically bound at the site level.100 Globally, the sector is driven by the demand for commodities and the pursuit of profit, neither of which are ecologically bound. Mining directly and indirectly impacts Planetary Boundaries:101 it contributes to biodiversity loss through pollution and direct and induced habitat destruction; to land use change through displacement of agricultural communities and forest clearing; to climate change through coal and bitumen mining; to the production of fertilizers disrupting the nitrogen and phosphorous cycles; and to the depletion and pollution of fresh water.102 Even under the most ambitious sustainability standards for mining, environmental considerations are an operational concern aimed at minimizing -not preventing- harm to the environment.103 In contrast, from an ecological law perspective, respecting ecological limits locally, regionally and globally would be fundamental concerns in determining whether a mining project is to be pursued at all.104
Protecting land from destruction and maintaining a traditional land use may be supportive of ecological integrity; however, they do not necessarily lead to a system that is ecologically bound. The challenge of incorporating ecological primacy into law involves setting benchmarks for ecological integrity and mechanisms to measure whether ecological integrity is being maintained and restored. At the same time, it is clear that norms that grant primacy to extractive land uses are obstacles in a shift toward ecological law.
C. Ecological Justice
Law under this principle would ensure equitable access to the Earth’s sustaining capacity for present and future generations of humans and other life forms and systems, and avoid the inequitable allocation of environmental harms. What can be said of the case from this perspective?
The Amparo raises issues of intra and intergenerational equity regarding the mining concessions, but no obvious links are made to inter-species equity. The threat of loss of access to and destruction of the land on which the community depends for their livelihood is at the heart of the Júba Wajíín opposition to mining in their territory. As noted, the Amparo argues that the preferential use of the land given to mining violates the constitutionally enshrined right to the protection of communal lands both for purposes of human settlements and for productive activities.105
The Amparo further claims that the fifty-year term of the concessions -renewable for another fifty years- compromises the future of the community and threatens future generations of its members.106 The Amparo also deems this term unconstitutional because it obstructs the implementation of several indigenous rights. According to the Amparo, the fifty-year term:
hinders the authorities from fulfilling their constitutional duty to protect the territory for human settlement and productive activities;
impedes the State’s constitutionally-mandated direction of the economy from being implemented to benefit indigenous communities and in a non-discriminatory fashion; and
prevents the Mexican authorities from complying with their duty to promote, respect, protect and guarantee indigenous peoples and communities the rights to consultation and to territory under ILO C169 and the ACHR.107
The Amparo alludes to Article 25 of the Constitution,108 which says in its first paragraph that:
The State is in charge of directing national development and must guarantee that such development is comprehensive and sustainable, that it strengthens national sovereignty and its democratic regime, and that it enables full exercise of the liberties and dignity of the individuals, groups and social classes, whose safety is protected by this Constitution, by promoting economic growth and employment, and a more just distribution of income and wealth.
The Amparo argues that based on this constitutional mandate, mining concessions are bound by ulterior and higher ends such as the general interest and the social use of the goods covered by the concessions.109 This argument furthers intragenerational equity. From an intergenerational perspective, the renewable fifty-year term of mining concessions is deemed inconsistent with the social use of the land.110
In sum, what light does the Júba Wajíín Amparo shed on some of the challenges and opportunities for adopting an ecological law model in Mexico, in particular regarding mining? The current approach to the human-Earth relationship as gleaned from the Amparo is anthropocentric with only incipient acknowledgement of interconnectedness on the part of the applicants, which indicates an important challenge for an ecocentric approach. From the perspective of ecological primacy, the Amparo reveals some opportunities for ecological law by highlighting the deeply conflicting rules over the use of the land. On the one hand, constitutional provisions proclaim the protection of traditional indigenous and agrarian uses (arguably consistent with respecting ecological limits); and on the other, the Mining Law prioritizes largescale mineral extraction (generally not conducive to respect for ecological limits). There are conflicting rules determining who decides what use should be given to the land: indigenous rights to consultation and territory require the free, prior and informed consent of indigenous communities for mining in their territories and the protection of those territories; contrasted with a framework designed to facilitate access to the land for mining investors. These provisions also have implications for ecological justice, as the latter appears to support profit-driven short-term uses while hampering the continuation of multi-generational relationships with the land.
A fundamental question underlying this case is whether any specific use should be preferred to others, and whether and in which ways the ultimate ends of any such use (subsistence, ceremonial, commercial, recreational, developmental, etc.) should affect that determination. The Mexican Constitution explicitly enshrines economic growth in Article 25, cited above, but at the same time this growth is bound to the fulfillment of broader societal goals. This is at the heart of a fundamental question underlying ecological law: what is the economy for and what is its proper place in society?111
V. Status and Significance of the Júba Wajíín Amparo
For now, the Júba Wajíín community is free from mining concessions on their territory although their case was not ruled on by the SCJN. In summary, the procedural history of this amparo is as follows. First, the district judge ruled in favor of Júba Wajíín declaring that the two mining concessions violated the community’s constitutional rights; however, the judge did not rule on the constitutionality of the contested articles of the Mining Law.112112 In response, the community and the Mexican authorities concerned both appealed the decision. Among other things, the former argued that the court failed to resolve all the matters set forth in the Amparo while the latter argued that there is no right to prior consultation regarding mining concessions.113 Following a request from the applicants, on February 11, 2015, the SCJN assumed jurisdiction over the appeal of the Amparo on the grounds that it raised issues of “importance and transcendence,” such as the interpretation of indigenous rights to territory and consultation, and deliberation as to whether the Mining Law is in accordance with the Constitution and international law.114
In November 2015, the company holding two of the challenged concessions abandoned those concessions.115 On May 25, 2016, the SCJN ordered a stay on its review of the Amparo and revoked the district judge’s ruling on grounds that the contested act no longer existed given the withdrawal of the concessions.116 Some argue this withdrawal was a strategy to prevent a momentous SCJN decision that would uphold indigenous rights against concessions and partially strike down the Mining Law.117
The amparos brought by indigenous communities against mining concessions on their territories can be interpreted as a (cautious) willingness on behalf of these communities to engage with the State (to a certain extent) and use the legal system to address some of their grievances. This is no trivial matter: other communities in Mexico have decided that engaging with the system is not worthwhile and are instead creating alternative ways to live.118 Many of the indigenous rights currently enshrined in the Constitution were introduced in 2001 as the result of a long struggle triggered by the Zapatista uprising in December 1994 and in recognition of ILO C169.119 The San Andrés Accords between the Zapatistas and the Mexican government called for constitutional reforms that would have gone beyond those actually adopted in 2001.120 For some, the reforms were a mockery121 and further reason for disengagement.122
These amparos reflect some indigenous groups’ decision to test the legal system by seeking judicial recognition of their rights. The amparos also test the 2011 Constitutional reforms that broadened the scope of the amparo trial to include the constitutionality of general norms and the observance of human rights recognized in international treaties to which Mexico is party.123
The district court’s initial favorable decision in the Júba Wajíín Amparo was hailed as evidence that the amparo trial could be used as a tool to protect indigenous rights.124 Arguably, a favorable decision from the SCJN might have even signaled a departure from what legal scholar Francisco López Bárcenas describes as the Mexican State’s historical treatment of indigenous peoples: a refusal to recognize their rights or recognizing them only in ways that cannot be enforced.125 The fact that the SCJN instead stayed its review of the case and revoked the district court ruling is viewed as yet another failure to protect the community’s rights, as well as a lost opportunity to examine indigenous rights and the constitutionality of the Mining Law.126 Speculating on whether the SCJN could have decided otherwise is beyond the scope of this analysis, but based on its February 2015 decision to review the Amparo, it seems clear that the court recognizes the importance of indigenous rights and the need to further their development.127 Communities affected by mining will continue to fight to have their rights respected, and other opportunities for the SCJN to rule on the constitutionality of the Mining Law may arise.128
For the mining company to have abandoned the concessions is, of course, a victory for the community of Júba Wajíín.129 However, it is a fragile, partial and short-term victory because, under the Mining Law, the land with a cancelled concession becomes available for another concession within 45 days of such cancellation.130 In fact, the Júba Wajíín community filed another amparo arguing that the authorities once again violated their constitutional rights to consultation by officially declaring the lots in question available for a new concession on November 24, 2015, without consulting the community. This amparo is under review by the district judge, who on December 11, 2015, granted the suspension of the declaration.131
A favorable SCJN decision would have delivered a victory with longer-term implications for Júba Wajíín and other indigenous communities threatened by extractive projects in their territories. Other amparos may have followed with similar results, changing the way mining companies relate to indigenous communities when there is an interest in mining on community territory.132
What does the fate of the Amparo mean from the perspective of ecological law? Admittedly, had the SCJN examined the merits of the case, it is unlikely that it would have even mentioned the environment, let alone explicitly engaged with ecological law. No reference is made to the environment in the initial SCJN decision to review the case.133 However, the fact the Amparo challenged Mining Law provisions that conflict with ecological law (in particular those prioritizing mining over other land uses) reveals that issues of great interest to ecological law are at least reaching the courts. Had the SCJN found the contested provisions of the Mining Law unconstitutional, it would have indirectly removed certain rules that are clear obstacles to ecological law.
VI. Conclusion
Ecological law is an emerging approach to law aimed at constraining the economy within ecological limits, restoring ecological integrity and enabling an ecologically just society. Based on a wealth of existing scholarship, this article proposed a lens of ecological law, comprised of the principles of ecocentrism, ecological primacy and ecological justice, as a tool to better understand what adopting ecological law might entail. It then offered an analysis of the Juba Wajíín Amparo against mining concessions using this lens, testing the hypothesis that upholding indigenous rights may also imply opportunities for ecological law. The analysis shows that the Mining Law provisions challenged by the Juba Wajíín Amparo pose important obstacles to ecological law; and even if tenuously, it shows synergies between indigenous rights and ecological law. From the perspective of ecological law, it is not justifiable for mining to be a priority land use over any other use: giving mining such pre-eminence is profoundly anthropocentric since by definition it gives primacy to economic interests, treating ecological considerations like operational concerns aimed at minimizing -not preventing- ecological harm. Finally, it is incompatible with ecological justice because it interferes with indigenous communities’ and other life forms’ and systems’ access to the Earth’s sustaining capacity, potentially over several generations. That the merits of this amparo were not examined by the SCJN because the concessions it was based on were cancelled makes it no less important as an example of the struggle for indigenous rights to territory and self-determination. Moreover, it illustrates the challenges facing a shift away from the current legal paradigm.
