Amparo No. 631/2012 (Independencia Aqueduct)
Decision by the Supreme Court of Justice regarding an amparo action under review. Consultation with indigenous peoples on environmental impact issues. Construction of “Independencia” aqueduct, which would carry water from the Yaqui river (which belongs to the Yaqui tribe) to the city of Hermosillo, Sonoro, Mexico.
In 2010, the State of Mexico promoted the construction and operation of a project called “Independencia Aqueduct”, which includes plans to carry around 60 million cubic meters of water from the “El Novillo” dam (located in the Yaqui river) to the Sonora river basin to supply water to the city of Hermosillo, Sonora. The project includes building a water catchment system at “El Novillo”, a repumping station, a steel aqueduct to supply the national water network, and a power transmission line. The purpose of the works is to carry the water from the Yaqui river to the city of Hermosillo, in violation of the rights of the Yaqui tribe established in a 1940 presidential decree to make use of 50% of the Yaqui river waters. The project was carried out without the Yaqui tribe being informed or consulted with.
Faced with the problem, traditional representatives of the Yaqui tribe of Vícam, Sonora, filed an amparo action seeking protection against violations of their human rights to territory, to consultation and to a safe environment. On May 4, 2012, the Fourth District Court decided in favor of the Yaqui tribe. The decision was appealed by the Attorney General’s Office and Dirección General de Impacto y Riesgo Ambiental at Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT, the federal environmental agency) and landed in the hands of the highest national court, the Supreme Court of Justice. On May 8, 2013, the Supreme Court confirmed the amparo action favoring the Yaqui tribe and ordered the State of Mexico, in a clarification note to the decision, to consult with the Yaqui tribe in order to determine whether the construction of the aqueduct causes any irreversible damages and, if so, to stop the construction/operation of the aqueduct regardless of the stage in which it may find itself. Citing ILO 169 and the Sarayaku decision, the Court also held that prior consultation should be culturally appropriate, informed, and conducted in good faith, in order to reach an agreement.
In spite of the clear terms of the decision, the competent authority requested that the decision be further clarified. In an unprecedented decision, the Supreme Court accepted the request and, on August 8, 2013, issued another decision, explicitly stating that the environmental impact authorization which cleared the construction of the “Independencia” aqueduct must be declared without effect until SEMARNAT has consulted with the Yaqui tribe (according to its habits and customs) to determine whether the project causes them irreversible damage; in case any violations are identified, the project may be stopped regardless of the stage in which it may find itself.
Enforcement of this decision has been slow and poor. The environmental impact authorization became ineffective on August 13, 2013, three months after the decision. Consultations with the Yaqui tribe have not started officially; the Yaqui peoples were only notified about a proposed methodology on September 21, 2013.
Tribu Yaqui (Autoridades tradicionales del pueblo de Vícam, Sonora, México).
Centro Mexicano de Derecho Ambiental, A.C. (CEMDA)
The decision by the First Court of the Supreme Court of Justice is very important for the right to territory, right to water and right to consultation with indigenous peoples and communities according to their habits and customs, because for the first time in Mexico Inter-American standards regarding the indigenous communities’ right to consultation were acknowledged by the Court.