- Legal authority acknowledges the lack of natural and social conditions for exercising the right to a free consultation in good faith and adequate circumstances, considering the upcoming electoral plebiscites on the federal level and the implications of the September 2017 earthquakes.
- District Court of Oaxaca confirms and grants definitive suspensions of the Consultation Procedure, the construction and operation of the wind park, based on the amparos presented by members of the community
The indigenous Zapotec community of Unión Hidalgo in Oaxaca, Mexico, obtained two definitive suspensions: one to avoid the continuation of the Indigenous Consultation Procedure concerning the wind park Gunaa Sicarú by the company Eólica de Oaxaca, S.A.P.I. de C.V., subsidiary of the French transnational company EDF EN; and another suspension that prevents the construction and operation of the wind park.
The same court had already granted provisional suspensions of the Consultation Procedure, construction and operation of the wind park on April 12, 2018, based on the amparos presented by members of the community with legal support from ProDESC (Economic, Social and Cultural Rights Project, A.C.).
On May 3 and 4, 2018, the First District Court of the state of Oaxaca determined that: “The consultation process will not take place or, if it already started, will be discontinued due to the inadequate natural and social conditions, which are characterized by the implications of the earthquakes in and after September 2017. Furthermore, internal conflicts could potentially arise within the community because of the upcoming electoral plebiscites on municipal level, and local cultural festivities will take place during the dates originally chosen for the Consultation Procedure. All of these aspects could influence the decision of the indigenous community, which is why the Consultation Procedure and thereby the construction and operation of the central wind park project Gunaa Sicarú will not be initiated.”
The General Directorate of Social Impact and Surface Occupation of the Mexican Secretary of Energy (SENER), federal, state and local authorities who are in charge of the Consultation Procedure are instructed to definitively suspend the procedure they had already initiated in an assembly on April 11, where both the Planning Phase and the Phase of Previous Agreements were started.
“If the Consultation Procedure to the indigenous community was to be continued without adhering to the highest international standards for this Procedure, which include being previous, free and informed, it would bring harm to the indigenous community of Unión Hidalgo, Oaxaca.”
Based on these conclusions, the Federal Court that granted the definitive suspension determined that the decision “is not to the detriment of the public interest or in violation of public order provisions” but, on the contrary, it intends to “enforce the fundamental rights of indigenous peoples regarding their territory by previously consulting them, in a free and informed manner and in good faith, on development projects or investment in their traditional indigenous territories. Equally, it emphasizes the State’s obligation to establish an effective mechanism for fair compensation.
The community has previously and repeatedly pointed out to the General Directorate of Social Impact and Surface Occupation of the Mexican Secretary of Energy that there are no adequate conditions for implementing a Consultation in accordance with the international standards established in ILO Convention 169, which is why the initiated consultation is neither suitable nor adequate.
The communities’ development priorities are focused on reconstruction after last year’s earthquakes. Conditions are still abnormal, with 70% of the homes damaged and 300 homes completely destroyed; basic needs of housing, dignified life, health and education have not been reestablished and the distribution of support has been mostly irregular.
There continues to be a serious risk that the upcoming elections will cause violent acts, as shown by recent confrontations in the region of Istmo de Tehuantepec which show direct or indirect links to the electoral process and dynamics of local politics.
The population’s efforts are concentrated on reconstruction and reestablishing normal conditions, which includes the recuperation of its cultural life, such as the traditional festivities of the “Velas”. For this reason, we reiterate that for a consultation to be culturally adequate it must not be carried out in a moment when the community is focused on solving the issues described above.
With its decision, the District Court acknowledges the Mexican State’s obligation to guarantee free and full exercise of the rights established in the Mexican Constitution, International Labour Organization’s Convention 169, the United Nations Declaration on the Rights of Indigenous People, Article 1.1. of the American Convention on Human Rights as well as the Interamerican Court of Human Rights’ rulings about Indigenous Consultation.
The resolution obtained adds to the legal actions undertaken by the community of Unión Hidalgo and ProDESC in defense of the community’s territory and natural resources with relation to the wind park Gunaa Sicarú. These actions include complaints before the Mexican National Commission of Human Rights and the OCDE’s National Contact Point in France.
Mexico City, May 15, 2018.
 An amparo is a legal resource in Mexican law to protect fundamental rights.