Supreme Court of Justice
María Elena Bustamante Heredia and others
Buenavista del Cobre, Sociedad Anónima de Capital Variable
On August 6, 2014, a spill of 40,000 cubic meters of acidulated copper sulfate (CuSO4) occurred in Arroyo Tinajas, Municipality of Cananea, Sonora, originating from the facilities of the mining company Buenavista del Cobre, S.A. de C.V., and affecting the Sonora and Bacanuchi rivers.
In February 2016, the residents of Bacanuchi learned that authorization had been granted for the construction of a new tailings dam by the same mining company. Faced with these events, an amparo lawsuit was filed alleging that the Ministry of Environment and Natural Resources (SEMARNAT) failed to conduct prior consultation with the members of the Bacanuchi community before authorizing the mentioned project.
A district judge in Sonora dismissed the amparo, considering that the affected parties did not have a legitimate interest in its outcome. Dissatisfied with this decision, the plaintiffs filed a motion for reconsideration. At the request of the collegiate court that received the motion for reconsideration, the Supreme Court of Justice exercised its power of attraction to resolve the matter.
The amparo was granted to the members of the Bacanuchi community.
The Court recognized that, under the General Law of Ecological Equilibrium and Environmental Protection, some works and activities (such as the construction of a mining tailings dam, as here) only require the submission of a preventive report and not an environmental impact statement, so long as there are Mexican official standards or other provisions regulating all relevant environmental impacts that may occur.
However, while it was true that the authorities acted in accordance with the applicable regulations, it was also true that the members of the Bacanuchi community should have been consulted prior to the issuance of the authorization to the mining company, in order to comply with the state obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressivity. The fact that the responsible authorities did not consult the members of the Bacanuchi community prior to the issuance of the authorization granted violated their constitutional and conventional rights of access to information and participation in matters that could affect their right to a healthy environment.