Constitutional Reform concerning the rights of Indigenous and Afro-Mexican Communities

Constitutional Reform concerning the rights of Indigenous and Afro-Mexican Communities

October, 2024

On October 1, 2024, the Decree amending, supplementing and repealing various provisions of Article 2 of the Political Constitution of the United Mexican States, concerning Indigenous and Afro-Mexican Peoples and Communities (the “Decree”), entered into force.

The Decree derives from an initiative submitted by the Federal Executive on February 5, 2024, which, among other purposes, seeks to vindicate the original cultures as subjects of public law and to recognize their normative systems in the Constitution in order to contribute to the resolution of the problems faced daily by indigenous and Afro-Mexican peoples and communities. Among the most important points of the Decree, we highlight the following rights recognized for indigenous peoples and communities: 1. They are recognized as subjects of public law, with legal personality and their own patrimony. 2. They are recognized the power to decide in accordance with their normative systems, their forms of government, and social organization; likewise, they may apply and develop their normative systems to resolve their internal conflicts, subject to the principles of the Federal Constitution. 3. They are recognized a right to access the jurisdiction of the State, in any trial and/or proceeding, and their normative systems and cultural specificities must be taken into consideration. In addition, indigenous persons have the right to be assisted and advised, at all times, by interpreters, translators, defenders and expert witnesses specialized in indigenous rights, legal pluralism, gender perspective and cultural and linguistic diversity. 4. The right to free, prior, informed, culturally adequate and good-faith consultation is incorporated with respect to administrative and/or legislative measures that may cause harm to, or generate impacts on, their life or environment. Although certain rights and principles were already recognized and embodied in international treaties and even several of them have been developed by the jurisprudential doctrine in Mexico and of the Inter-American Court of Human Rights, this constitutional reform seeks to reinforce, guarantee and systematize at the constitutional level a body of rights that strengthen the legal sphere of indigenous peoples and communities, providing them with legal tools for the defense and guarantee of their rights. For those actors interested in the development of projects in Mexico, whether in energy, mining and/or infrastructure in general, it will be essential to have adequate legal advice and support, in order to guarantee the observance and respect of the rights of indigenous peoples and communities, not only as compliance with an ethical duty and total respect for the human rights of indigenous peoples and communities; but also to guarantee the successful and sustainable development of projects and long-term investments. Finally, the Decree provides that, within 180 days counted from its entry into force: (i) Congress must issue a general law on the matter and harmonize the legal framework of the current laws to adapt them in accordance with the Decree; (ii) the Executive must harmonize all administrative provisions to ensure respect for and implementation of the rights of indigenous and Afro-Mexican peoples and communities; and (iii) the authorities of the three levels of government must adapt the regulations to ensure the characteristics of self-determination and autonomy of indigenous and Afro-Mexican peoples and communities. For any questions and/or additional information, please contact our experts in the Energy and Natural Resources Industry Group: Edmond Grieger, Partner:+52 (55) 5258-1048 | egrieger@vwys.com.mx Ariel Garfio, Partner:+52 (55) 5258-1008 | agarfio@vwys.com.mx

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