Lithium Mining Law in Mexico Needs a Comprehensive Reform
Mexican mining legislation is atypical. In recent years, concessions have been granted for 105 million hectares, almost half of the national territory, and 'global concessions'; that is to say, they include exploration, exploitation, and benefit.
The defense of lithium is essential because it constitutes a fundamental reserve that must be controlled since "it cannot follow the same fate as gold, silver, or copper, where it has been a real plunder," said Jorge Witker Velásquez, a specialist at the Institute of Legal Research (IIJ) of the UNAM and author of the book Mining Law.
"The European Union and the United States constitute the majority demand for this input because it is the head of productive chains that have to do with electromobility, with the entire aerospace industry, with chips and artificial intelligence," he added. Lithium is a strategic alkaline mineral that will replace oil in the future.
The other members of the Mexican Academy of Sciences indicated that one of the main countries that possess this element is China. Australia has advanced technology in exploration and exploitation, in addition to the so-called South American triangle formed by Argentina, Bolivia, and Chile, nations that contribute 25 to 30 percent of the global deposits of this material.
In Mexico, several mines were discovered a few years ago; the characteristic of Mexican lithium is that it is mixed with clay.
There is an abundance in states such as Sonora, San Luis Potosí, and Baja California, and it is estimated that in Zacatecas as well, but they are simply previous explorations. It must be recognized that the Mexican Geological Service, which depends on the Ministry of Economy, is the one that carries them out. However, what is important is what happens with the concessions that were given to certain companies in terms of exploration, exploitation, and benefit of the product.
The problem we discovered, and this is one of the contributions of our book, is that Mexico is the only part of the world where concessions are granted for hectares and not for minerals.
"They have been granted in numbers greater than 24 thousand, and for 50 years these elements have nothing to do with Comparative Mining Law, where the countries that have legislation teach Mining Law in the careers of jurists and lawyers, and where the concessions have terms of six, ten years, or 12 years, not 50!".
In other latitudes they are granted, he continued, for copper, silver, and zinc. They call them specific, but in our country, they are known as generic concessions. In any part of the world, they are divided, for example, only to explore; if they do well, another one is requested to exploit; and one more for final benefit.
"We discovered that our Mexican mining legislation is atypical. In recent years, concessions have been granted for 105 million hectares, almost half of the national territory, and 'global concessions'; that is to say, they include exploration, exploitation, and benefit, "he remarked.
The complexity of the problem
"With respect and technical language, they speculate on the national territory; there is no inspection; nobody asks 'hey, are you exploiting it or not?'"
He said that giving land to concessions goes against the social rights of indigenous communities, peasant communities, milpa-making communities, and so on because it gives the license holder more power than the land's original owners.
That is why we also have a chapter dedicated to mining law and human rights, including economic, social, and cultural guarantees, as well as the right to consultation with the communities.
And the fact is that when a mine is exploited, the deposit ends and the companies leave, there is no one to complain to because there are 250 dams around with tailings (waste from the activity that is smoldering).
"It has been deliberately omitted to talk about the subject because it is an issue that has caused many socio-environmental conflicts, because open-pit mining is limited in international conventions and some cases prohibited, as in Germany and Hungary; the indiscriminate use of cyanide to separate the clay from the silver and gold, these two elements that can imagine the environmental impact it causes; and the indiscriminate use of water," emphasizes Witker Velásquez.
For the university professor, this makes mining activity considered a "taboo". Although this happens in Latin America, it is not exclusive to Mexico, so there is a context of omissions, so this topic cannot be omitted, nor can it cease to be in the collective culture.
The expert pointed out that his work is the first text that updates the subject in depth in Mexico since 1965, and has been considered as a source for the recent reform project to the mining law in articles 1, 2, and 10. It is a step forward and a contribution from the UNAM, but "the big issues are still not addressed."
Witker Velásquez pointed out that the merit of the work edited by the IIJ is "to update information that has not been available and to collaborate in the teaching of mining law to jurists and lawyers."
The expert said that this information had to be updated because our country is a mining country. "Together with Peru and Colombia, we are the region with the largest infrastructure projects and extractivism. We had two editions. The first one came out in 2019, but when the topic of lithium came up, which is found in the subsoil and is mined, we added a chapter about it to the second edition.
The book offers an overview of Comparative Mining Law where the legislations of Colombia, Ecuador, Peru, Chile, Canada, and Australia are reviewed, "where the great omissions of our Mexican mining legislation are compared".
The Derecho Minero contains 277 pages and was published by the IIJ in the Serie Doctrina Jurdica, Number 874. The first edition was published on November 6, 2019, and the second edition in January 2021.
It consists of seven chapters: General Notions; Content of Mining Law; The Mining Concession; Comparative Mining Law (Chile, Ecuador, Colombia, Peru, Australia, Canada); Lithium; Impact of Mining on Human Rights (DESCA); and Towards a Mining Secretariat based in Chihuahua.