[March 2015] The Efficacy of Monitoring Rulings Regarding Mega-Development Projects: The Case of the Yaqui People in Mexico
In general, the monitoring of ESC rights has been associated with a citizen-led process of following and advocating in the realm of public policy, and has been relatively infrequent in the context of mega-development projects. The current context in Mexico is characterized by a logic informed both by the unfettered reign of the market, which is enabled by lax legal frameworks that do not address irresponsible actions by extractive companies, and a public sector focused on public infrastructure projects. Hence, it is essential to develop holistic strategies that ensure the effective protection of communities’ collective rights.
Our experience has taught us that community-based organization and organizations are fundamental to defending local territories and natural resources. Other pathways to action are also being implemented more frequently, including strategic litigation, corporate research and capacity building for local actors. Nonetheless, an increasingly common challenge is to ensure adequate compliance with legal rulings when it has indeed been recognized that certain rights of the community have been violated as a result of extractive projects. In combination, the vested economic interests and impunity of government officials ensure that these authorities continue to make a mockery of the state of law, even when legal resolutions recognize violations. For this reason, social monitoring mechanisms become essential to guaranteeing the real access of affected groups to justice. In such cases, monitoring can play a key role in impeding, or at least mitigating, the disregard of human rights demonstrated by mega-development projects.
Civil society has come together to support the legal struggle of the Yaqui tribe in defense of their right to water. This is an emblematic example of how this sort of monitoring tool based on social pressure can play a role in the enforceability and justifiability of ESC rights. In May 2013, the First Chamber of the Supreme Court of Justice of the Nation ruled that the Mexican government had violated the Yaqui people’s right to free, prior and informed consultation and consent. The ruling acknowledged the failure to consult the Yaqui regarding the impacts of the “Independence Aqueduct” project during the environmental assessment process. This was the first time that the highest court of the country had recognized the government’s failure to fulfill its obligation under international human rights law to consult with indigenous peoples. The ruling also set out precise parameters for local branches of government in terms of how to carry out a consultation process that meets international standards.
In response to these unprecedented events, five Yaqui villages requested that various social organizations monitor the enforcement of the sentence issued by the government. Particular scrutiny was to be applied to the criteria established by the Supreme Court regarding good faith, free, prior and informed consent and the human rights of the community. With these objectives as their banner, a group of more than 100 organizations and academic institutions came together to form the Civil Mission for Observation of the Consultation (MCO). The MCO has now been working for a little over a year and, in that time, it has published two reports detailing the serious errors made by the branches of government responsible for the consultation process. Through press conferences, academic conferences, a frequent presence in the media, as well as dialogue with the Supreme Court and different areas of government, the coalition has been successful in maintaining a systematic denunciation on a national level. Furthermore, collaboration with international organizations, such as ESCR-Net and Amnesty International, in addition to communication with the Inter-American Commission on Human Rights, have made it possible to intensify the pressure on the Mexican government.
Unfortunately, in spite of the multitude of actions that have been deployed, it has proved impossible to reconcile the actions of the Mexican government in any substantive way. The most recent report released by the MCO, entitled “A Failed Sentence: the Failure of the Mexican Government to Fulfil the Supreme Court Resolution Regarding the Yaqui Tribe’s Right to Consultation”, informs that violations to the human rights and right to consultation of the Yaqui tribe not only continue, but rather, such violations have intensified. Mario Luna and Fernando Jiménez, two Yaqui men that participated in the consultation process and have had a high profile in the struggle, are imprisoned as a result of crimes fabricated by the Government of the State of Sonora, which has been promoting the mega-project. The report also condemns the continued operation of the “Independence Aqueduct”, despite the failure to conclude the consultation process and obtain the corresponding environmental permit. As a result, Yaqui people continue to experience serious violations in relation to their right to water, food, health, development and the cultural survival of the Yaqui tribe. Given these circumstances, the consultation process has been suspended, since there is a complete lack of conditions guaranteeing a dialogue in good faith.
Given the inability to resolve the Yaqui case, we question the efficacy and validity of monitoring in cases such as this one. The dishonourable practices of the Mexican government continue, the mega-project continues to operate, the Yaqui have been criminalized and their collective rights have been violated. These realities lead to many legitimate questions regarding the merit of this sort of monitoring. These ongoing struggles should be contemplated in the context of questioning the capacity of monitoring in the context of the current development model. Nevertheless, if this tool is utilized as part of a holistic strategy that includes many different puzzle pieces, each with a critical role, there is a good chance that the end result could be less frustrating. We can use the present case as an example of the components involved in such holistic strategies. There are Yaqui communities defending their right to water, with a long history of struggles to protect natural resources. There is also a team of lawyers dedicated to filing appeals. In addition, there is a diverse range of allied actors working in solidarity. Finally, the Civil Mission for Observation is also a key actor in terms of its fundamental role in documenting the consultation process and publicly condemning the failure to enforce the Supreme Court ruling. In my humble opinion, the many objectives of this strategy have been successful, given that it has ensured that the Yaqui tribe’s demands regarding their rights have remained audible, both on a national and a national level. Ultimately, this strategy for defending the human rights of the Yaqui has been strengthened during this process. However, it is obviously the Yaqui people who could best comment as to the success of this strategy.
It would be very valuable to hear about similar experiences in your countries, and to hear your reactions to the issues discussed.
Edmundo del Pozo is a human rights researcher with the Fundar Center for Research and Analysis: http://fundar.org.mx/
 The report was first presented to the Supreme Court of Justice of the Nation on February 11. As part of the same public function, the report was formally delivered to Ministers of the Court by Tomás Rojo, the spokesperson of the Yaqui tribe, as well as members of the MCO. The function garnered a great deal of attention from the press and national media. Subsequently, there have been other such functions in Hermosillo, Sonora, where the State government responsible for promoting the “Independence Aqueduct” is headquartered, as well as at major universities in the country.