- District Court in the State of Oaxaca grants provisional suspensions of the Consultation Procedure to the Zapotec community of Unión Hidalgo, Oaxaca, as well as the construction and operation of the wind park project, based on an amparo presented by members of the community, accompanied by ProDESC.
- The judicial authority recognizes that in Unión Hidalgo there are no adequate natural or social conditions that would allow exercising the right to a free consultation, done in good faith and appropriate to the culture.
- The provisional resolution indicates that it would generate irreparable damage to the Zapotec community if the consultation was to be continued.
As a result of various amparo trials filed with the support of the Project for Economic, Social and Cultural Rights, A.C. (ProDESC), the indigenous Zapotec community of Unión Hidalgo, Oaxaca, obtained provisional suspensions so that the indigenous Consultation on the Gunaa Sicarú wind park project of the company Eólica de Oaxaca, S.A.P.I. of C.V. - subsidiary of the French transnational company EDF EN-, will not continue, nor will its construction and operation be initiated.
The provisional suspensions are based on a historical decision of a District Court in the State of Oaxaca, which creates a favorable precedent for the defense of the rights of indigenous communities. It determines that "there are no adequate natural conditions (given the earthquake that occurred in September 2017), nor social conditions, considering that conflicts may arise within the community because of the upcoming electoral plebiscites at the municipal level and the cultural events for patron saint festivities. These aspects could influence the decision to be adopted by the indigenous community, which is why the construction and operation of the Gunaa Sicarú wind park project will not be initiated".
The decision means that neither the General Direction of Social Impact and Surface Occupation of the Secretary of Energy, nor a series of federal, state and municipal authorities may continue with the Consultation Procedure on the construction and operation of the wind park, which had already started last year with acts of the Consultation Plan phase, and on April 11, with the first Assembly of the Phase of Prior Agreements.
With this decision, the Federal Court that granted the suspension measure takes on what the community has previously indicated: the lack of adequate conditions for the development of a Consultation Procedure that would comply with the standards established in the International Labour Organization’s Convention 169.
The consultation currently promoted by the Secretary of Energy is neither suitable nor appropriate, since the community's development priorities are focused on the reconstruction process after the earthquakes of September 2017, in which Unión Hidalgo was the second most affected community of the region:
- Conditions are abnormal, considering that at least 70% of homes are damaged and 300 homes collapsed completely.
- The basic needs of housing, decent life, health and education have not been restored and irregular delivery of support has been prevailing.
Adding to this situation is the beginning of the campaign period in the federal and local electoral processes, which is why there is a serious risk of acts of violence, as demonstrated by recent confrontations in the region of Istmo odeTehuantepec, which is directly or indirectly linked to the electoral processes and local political dynamics.
On the other hand, the most deeply rooted festivities of the Zapotec community - the traditional celebrations “Las Velas” - begin in May. The community focuses completely on those festivities, which represent not only family union but also demand the participation of each community member, which is why the time period established by the Secretary of Energy for the consultation is not culturally appropriate.
The decision issued by the District Court recognized the obligation of the Mexican State to guarantee the free and full exercise of the rights established by the Constitution, ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples, Article 1.1 of the American Convention on Human Rights, and the judgments of the Interamerican Court of Human Rights on Indigenous Consultation.
The resolution is framed by the legal actions developed by the community of Unión Hidalgo, supported by ProDESC, in defense of its territory and natural resources in relation to the Gunaa Sicarú wind park. These included a complaint before the National Human Rights Commission, requesting precautionary measures, which, in a historic act, were granted by the National Human Rights Commission, suspending this way the indigenous consultation that authorities of all three government levels were trying to carry out.
Furthermore, last February a complaint was filed with the National Contact Point of the OECD in France, for possible human rights violations committed by the company EDF and its subsidiaries in Mexico. It should be noted that in July 2017, the community filed an amparo against the permission to generate electrical power in the Gunaa Sicarú wind park, which was granted by the Energy Regulatory Commission without previously consulting the community. The amparo is currently being processed.
Mexico City, April 25, 2018.
An amparo is a legal protection tool available in Mexican law.