Conflict over land and water rights in a gold mining case
96
Under-mining land and water rights Conflict over land and water rights in a gold mining case Cerro de San Pedro, Mexico MSc thesis by Didi Stoltenborg August, 2014 Soil Physics and Land Management Group
Transcript of Conflict over land and water rights in a gold mining case
Under-mining land and water rights
Conflict over land and water rights in a gold mining case
Cerro de San Pedro, Mexico
MSc thesis by Didi Stoltenborg
August, 2014
Soil Physics and Land Management Group
I
II
Under-mining land and water rights.
Conflict over land and water rights in a gold mining case
Cerro de San Pedro, Mexico.
Master thesis Soil Physics and Land Management Group submitted in partial
fulfilment of the degree of Master of Science in International Land and Water
Management at Wageningen University, the Netherlands
Study program:
MSc International Land and Water Management
Student registration number:
890314-808-110
LDD 80336
Supervisors:
Dr. Ir. C.A. Kessler (Wageningen University)
Prof. Dr. Ir. R.A. Boelens (Wageningen University/University of Amsterdam)
Dr. Ir. F. Peña (el Colegio de San Luis)
Examinator:
Prof. Dr. Ir. C. Ritsema
21th of August, 2014
Soil Physics and Land Management Group, Wageningen University
III
IV
Acknowledgements
I would like to make use of this opportunity to thank my supervisors, Aad Kessler and Rutgerd
Boelens, for supporting me throughout this thesis research and for stimulating me to think critically.
I would also like to thank all people who have facilitated my stay and helped me with my research:
Dr. Ir. Francisco Peña (ColSan), German Santacruz (ColSan), Lydia Torre (ColSan), Mario Martinez
Ramos (FAO), David Covarrubias (FAO), and “Don José Antonio García Morales” and “Doña Maria
Guadalupe Moreno Sanchez” and her daughter (inhabitants of the villages close to the mine), and of
course all others who have helped me during my research. Thank you for giving me insight into your
lives and for sharing your knowledge with me.
Special thanks goes out to Jesse Samaniego Leyva, for showing me your country, acquainting me with
the culture and for supporting me during fieldwork. Without your help, realizing this thesis would
have been enormously much harder.
Lastly, I would like to express my gratitude towards my family and friends for their never-ending
support and encouragement during this project.
V
List of abbreviations
ASARCO - American Smelting and Refinery Company
Conagua - National Water Commission (Comisión Nacional del Agua)
EIA - Environmental Impact Assessment
FAO - Broad Opposition Front against Minera San Xavier (Frente Amplio Opositor)
FDI - Foreign Direct Investment
INE - Instituto Nacional de la Ecología
IMF - International Monetary Fund
MMRP - Mexico Mining Restructuring Project
NAFTA - North American Free Trade Agreement
NAFTA CEC - North American Free Trade Agreement Council on Environmental
Cooperation
PROFEPA - Federal Attorney on Environmental Protection (Procuraría Federal de
Protección al Ambiente)
Semarnat - Secretary of Environment and Natural Resources (Secretaría de Medio
Ambiente y Recursos Naturales)
MSX - Minera San Xavier
TFJFA - Federal Fiscal and Administrative Federal Tribunal (Tribunal Federal de
Justicia Fiscal y Administrativa)
VI
Abstract/summary
In 1998, the Canadian mining company Newgold Inc. arrived to the rural village of Cerro de San
Pedro, Mexico, with the intention to exploit the present gold and silver reserves by means of an open
pit mine. Project opponents feared adverse social and environmental impacts, and years of intense
conflict over water, land and the environment followed. Despite court cases still pending, the mining
company started operating in 2007. To date, project opponents are contesting the presence of the
mining company in Cerro de San Pedro. Newgold Inc., however, has continued operating despite
having lost several court cases.
The main research question is: “How has the presence of the goldmine influenced the
conceptualization, distribution and operationalization of land and water rights of affected families in
surrounding communities?” In order to answer this question, the conflict was analysed using the
Echelons of Rights Analysis (ERA) framework. This framework allows for an in-depth understanding of
a conflict, distinguishing four layers within a conflict: 1) conflict over contested resources, 2) conflict
over the meaning and contents of rules and regulation, 3) conflict over decision making power, and
4) discourses. Preliminary research was performed in the Netherlands, after which three months of
fieldwork were conducted in Cerro de San Pedro, Mexico. Data was mainly acquired by means of
interviews and literature research. The results show the changes in conceptualization and
distribution of land and water rights that are caused by the presence of the mining company. Due to
the particular history of the village, changes in land and water management practices could not
always be traced back to the presence of the mining company. Especially interesting was the link that
has been laid between national and international (trade) legislation and their effects on land and
water rights on the local level.
Keywords: mining, land rights, water rights, conflict, Minera San Xavier, Echelon of Rights Analysis
VII
Resumen extenso en español
La minera de oro y plata es muy importante para la economía de México: la minera contribuye hasta
8% de la PIB (Producto Interno Bruto) del país. La mayoría de las empresas mineras que operan en
México son extranjeras, especialmente provenientes de Canadá. Desde 1990s, México abrió sus
puertas para la inversión extranjera, que fue particularmente notable en la industria minera:
inversión en la minera incrementó de US$ 500 millones en 2000 hasta US$ 4.5 billones en 2012
(Government of Ontario 2011; Deloitte 2012).
A pesar de que la minería puede ser un negocio rentable, los aspectos negativos de la actividad
minera son cada vez más evidentes. La degradación ambiental, adquisición ilegal de tierras,
contaminación del agua, la corrupción, la violencia, la resistencia y el conflicto a menudo se asocian
con el desarrollo de la minería. Las comunidades campesinas e indígenas se ven afectadas por la
actividad minera en la zona, y las estrategias de subsistencia de las comunidades cercanas a la mina
son a menudo amenazadas por un menor acceso y control sobre la tierra. La mayoría de veces, los
"beneficios" económicos prometidos por las empresas mineras (por ejemplo empleos temporales
para las comunidades aledañas), no contrarrestan los efectos negativos de la producción minera.
Estos efectos negativos con frecuencia dan lugar a conflictos, y por desgracia, los conflictos mineros
son generalmente la regla y no la excepción. En 2013, El Observatorio de Conflictos Mineros en
América Latina (OCMAL 2013) registra trece conflictos mineros a gran escala en México, en la
mayoría de los cuales las compañías mineras extranjeras se involucraron. Uno de estos conflictos
tiene lugar en el municipio de Cerro de San Pedro, ubicada en el estado de San Luis Potosí: Minera
San Xavier (MSX - afluente mexicano de la empresa minera canadiense NewGold Inc.), está operando
una mina de oro a cielo abierto en este área. Cerro de San Pedro y La Zapatilla son dos pueblitos
afectados por la minera: los dos pueblos y la empresa minera son objetos de este estudio.
Este trabajo de grado se centra principalmente en los derechos de tierra y agua, la tierra y el agua
son dos de los principales recursos utilizados por las minas, mientras que al mismo tiempo siendo de
vital importancia para los medios de vida de los habitantes de zonas cercanas a la mina. Sabiendo
que a menudo la minería va de la mano de conflictos en torno a estos recursos, esto trabajo se
centra en el impacto que tiene el MSX sobre la división y conceptualización de los derechos de tierra
y agua en las comunidades vecinas, y cómo el conflicto ha surgido sobre estos derechos a la tierra y
el agua. Además, la presencia de una mina no sólo causa un cambio en el uso del suelo; a menudo
también causa cambios profundos en las circunstancias socio-económicas de las comunidades
afectadas. Cuando los derechos de tierra y agua cambian, el ejercicio cotidiano de estos derechos es
probable que se alteren también. Así, la segunda parte de esta tesis se centra en responder la
pregunta sobre cómo la presencia de la empresa minera y los cambios en los derechos de tierra y
agua han causado un cambio en las prácticas de manejo diariamente de tierras y agua.
Para realizar esta investigación, he pasado tres meses en Cerro de San Pedro, realizando de trabajo
de campo, durante la cual visité muchas veces a la mina, logre establecer conversaciones formales
con los habitantes locales, los miembros de la oposición, la mina, funcionarios del gobierno y muchas
más personas, y experimenté un poco lo que es vivir en una zona minera. La mayoría del trabajo por
este tesis consiste de entrevistas, observación y revista de la literatura.
VIII
La pregunta principal de investigación es el siguiente:
¿Cómo influyó la presencia de la mina de oro de Minera San Xavier en el distrito de Cerro de San
Pedro, México, la conceptualización, la distribución y la operacionalización de los derechos de tierra y
agua de las familias afectadas en las comunidades de Cerro de San Pedro y La Zapatilla?
Para analizar el conflicto que surgió sobre los derechos por agua y tierra, se ha usado el marco de
análisis “Echelons of Rights Analysis” (ERA - Análisis de los Escalonamientos de Derechos) (Boelens
2008; p.7-8). En un conflicto sobre los derechos en torno a los recursos se puede distinguir varios
niveles de abstracción. Dividiendo el conflicto en estos diferentes niveles de abstracción ayuda a
aclarar los fenómenos que son presenciados o notados durante la investigación. El marco ERA
distingue cuatro niveles en un conflicto:
Nivel (echelon) 1: Conflicto sobre el acceso y la explotación de los recursos;
Nivel (echelon) 2: Conflicto sobre el contenido de las normas;
Nivel (echelon) 3: Conflicto sobre la autoridad de tomar decisiones;
Nivel (echelon) 4: conflictos entre Discursos
El marco ERA muestra que los conflictos sobre los recursos van más allá de los "recursos", que los
diferentes niveles son dominios disputados, y que estos dominios están relacionados entre sí
(Boelens 2008).
México: un país proteccionista toma un camino neoliberal
Durante los 1980s, México enfrentó una profunda crisis económica. El país, conocido por sus políticas
proteccionistas, adoptó un camino neoliberal bajo la presión del World Bank, la cual sólo quería
prestar dinero a México bajo la condición de que se abrirían el país para la inversión extranjera. Para
la apertura del mercado y la mercantilización de los recursos de agua y tierra, la modificación de las
leyes era necesario. Fue en este entonces que modificaron a la Ley de Aguas Nacionales, la Ley
Agraria, la Ley Minera y la Ley de Inversión Extranjera, entre otros. Estos cambios abrieron el camino
para unirse al Trato de Libre Comercio de América del Norte (TLCAN) en 1993. Fue después de la
unión con el TLCAN que el interés extranjero (y especialmente de los Estados Unidos y Canadá) en la
minería en México aumentó.
Aunque el camino neoliberal fue presentado como un paso adelante para la economía, críticos de los
cambios no están de acuerdo. Las opiniones sobre la eficacia y las consecuencias (no intencionadas)
del supuesto neoliberalismo adoptado desde la década de 1990 en México, varían. El derecho al
agua, que una vez fue pública y accesible a todo el mundo, está en reformas neoliberales
transformada a una propiedad privada apoyada jurídicamente e institucionalmente. El
neoliberalismo se basa en el argumento de que la privatización de los derechos de agua aumentarán
la seguridad del agua, sobre todo beneficiando a los pobres, ya que deben ser capaces de contar con
una disponibilidad de agua constante. Sin embargo, en la práctica todo lo contrario es a menudo lo
que sucede, y en México, muchos pequeños agricultores se han visto obligados a abandonar la
agricultura, debido a los cambios en la legislación. En unas áreas los precios de agua por varios
cultivos han incrementado con 89% a 186%, causando que los pequeños agricultores (ejidatarios1)
abandonan sus tierras a un ritmo acelerado, lo que de hecho ha dado lugar a la privatización de la
tierra; los pequeños agricultores están luchando para mantener sus medios de vida, tierra y agua 1 Ejidatarios son los miembros de un ejido; un tipo de manejo colectivo de tierras comunales, la cual es un tipo
común de gestión de tierra en México.
IX
(Wilder 2010). Otros críticos dicen, por ejemplo, que el agua es un derecho humano, que no se
puede privatizar (Wilder & Romero Lankao, 2006).
El conflicto en Cerro de San Pedro
El conflicto, sujeto de este estudio, toma lugar en el municipio de Cerro de San Pedro. El pueblo, con
el mismo nombre, es un poblado pequeño con una larga historia minera. En el siglo 16, los españoles
fundieron las primera minas reales (subterráneas) en Cerro de San Pedro. Dado que en el área no
había suficiente agua para abastecer al pueblo y para la actividad minera, se fundaron a la Ciudad de
San Luis Potosí, ubicada 18 km al este de Cerro de San Pedro, en donde si hubo agua para atender
todas las necesidades. Los conquistadores decidieron añadir el nombre ‘Potosí’ como homenaje a las
minas más productivas de Potosí en Bolivia. Así que Cerro de San Pedro se encuentra en la base de la
fundación de San Luis Potosí, y hasta hoy en día, el cerro de ‘San Pedro’ es parte de la emblema de la
Ciudad de San Luis Potosí (Vargaz-Hernandez, 2006). Zapatilla es un pueblo pequeño ubicado en el
mismo municipio, y fue reubicado para hacer espacio para la minera. La mayoría de los habitantes
vendieron sus tierras a MSX y ahora trabaja para MSX.
La vida en Cerro de San Pedro y la Zapatilla siempre giraba en torno de la minera. La minera
proporcionaba una de las pocas fuentes de trabajo; la agricultura de subsistencia era una práctica
generalizada y fue una adición esencial sobre el ingreso de la minería. Durante las décadas, las
empresas mineras iban y venían, y cuando la última empresa minera American Smelting and Refinery
Company (ASARCO) dejó de operar en 1948, la población cayó en la pobreza. La mayoría de los
habitantes salieron de Cerro de San Pedro en búsqueda de trabajo en otros partes del país. En sus
buenos tiempos había 5000 habitantes en Cerro de San Pedro; hoy en día, solo acerca de cien
habitantes permanecen. El pueblo está desierto y la mayoría de los edificios están en mal estado. El
pueblo es lleno de ruinas de casas, tiendas y otros edificios: hay dos iglesias que abren sus puertas
durante los fines de semana. Los niños van a otro pueblo para ir a la escuela, dado que la única
escuela del pueblo ya cerró sus puertas (Vargaz-Hernandez 2006, Reygadas et al. 2008, Herman
2010, Gordoa 2011).
En 1996, MSX anunció que quería empezar un gran mina a cielo abierto de oro y plata. La instalación
de la mina fue objeto de gran controversia, como la escala y el tipo de operación minera pondrá una
pesada carga sobre los recursos de tierra y agua disponibles. MSX usa un millón m3 de agua anuales,
y aplica 16 toneladas de cianuro en su patio de lixiviación para extraer el oro y la plata. Además
ocupa un área de 373 hectáreas de tierras ejidales, la cual era obtenido a partir de una ‘ocupación
temporal’, otorgado por el Ministerio de Economía de México. Nació una oposición feroz, y hoy en
día, varios grupos de la oposición se unieron en el Frente Amplio Opositor (FAO). La oposición ha sido
muy fuerte, y a veces el conflicto se reveló violente. Miembros de la oposición reportan asaltos a sus
casas y sus vidas; el asesinato del alcalde de Cerro de San Pedro en Marzo de 1998 fue un resultado
extremo. Fue en medio de grandes protestas y la violencia que MSX inició sus operaciones en 2007, y
hasta la fecha, la presencia de MSX está sujeto de controversia. La oposición está basada por una
larga parte en los derechos por agua y tierra y las políticas involucrados en torno a estos derechos. La
FAO ha ganado varios casos judiciales y afirma que el MSX está operando ilegalmente; sin embargo,
hasta la fecha, MSX continua operando en Cerro de San Pedro.
X
Como han cambiado los derechos por agua y tierra en Cerro de San Pedro?
El análisis del conflicto aclaro seis cosas muy importantes relacionadas a la conceptualización de los
derechos por agua y tierra en Cerro de San Pedro, y como han cambiado cuando vino MSX:
1) Zona de veda
2) Decreto de 1993
3) Contrato de arrendamiento de la tierra ejidal
4) Pluralismo legal
5) La ocupación temporal
6) TLCAN
Punto 1. Zona de veda – pero que tan difícil es conseguir concesiones de agua en una zona de veda?
Agua es un recurso escaso en San Luis Potosí, y para conservar el acuífero (una de los pocos fuentes
de agua en San Luis Potosí, la cual abastece agua a más que un millón de habitantes), el gobierno
emitió un Decreto en 1961, estableciendo una zona de veda en el área de Cerro de San Pedro. En la
zona de veda no dan nuevas concesiones de agua; sin embargo, por los cambios neoliberales, ahora
se puede vender y comprar concesiones de agua, siempre y cuando los antiguos pozos estén
cerrados. Aunque la adquisición de las concesiones de un millón m3 agua era un proceso legal, el
argumento de que el agua es un bien escaso y que la asignación de un millón de m3 a una industria
minera no se alinea con la falta de agua en algunos pueblos vecinos, refuerza la afirmación de que
"escasez" de agua es una declaración política en lugar de un estado natural de este recurso. A pesar
del hecho de que el agua es un bien ‘escaso’, las concesiones de agua siguen siendo objeto de un vivo
mercado de comercio, y es muy poco probable que la sobre-explotación del acuífero disminuya a
pesar de la veda.
Punto 2. Decreto de 1993 – no desarrollo de industria con uso excesivo de agua
En 1993, la mayor parte del municipio de Cerro de San Pedro era designada como área de ‘desarrollo
de la vida silvestre’ (Vargaz-Hernandez, 2006). Esto significaba que en el área no se podían
desarrollar industrias con uso excesivo de agua; sin embargo, en 2007 MSX instaló una mina con uso
de agua de un millón m3 anual (para comparar: la agencia de agua potable tiene concesiones para 85
millones de litros de agua al año, y tiene que proveer el agua a más de un millón de personas (Peña &
Herrera, 2008b). Hubo gran controversia sobre la forma en que el Decreto 1993 para la zona de
conservación de la vida silvestre y área de recarga del acuífero, después de años de litigio, finalmente
fue derrocado por los tribunales de México, usando el argumento que la minera se puede considerar
como actividad primaria, y por lo tanto no es ‘industria’ con uso excesivo de agua. Conceptualización
de los derechos de agua como tal se cambia de tal manera que las leyes fueron derrocados y se
interpretan de manera diferente para servir al mayor bien económico, sin tener en cuenta los
impactos ambientales y judiciales.
Punto 3. Contrato de arrendamiento de la tierra ejidal – la cual fue firmado por ejidatarios falsos;
Punto 4. Pluralismo legal – discrepancia entre la Ley Agraria y la Ley Minera;
Punto 5. La Ocupación Temporal – La Ley Minera tiene el poder de expropiar los terratenientes.
Derechos sobre la tierra eran afectados de dos formas en el caso de Cerro de San Pedro: el contrato
de arrendamiento falso que era, en primera mano, aceptado, posteriormente declarado nulo. El
hecho de que aparentemente una empresa puede entregar un contrato de arrendamiento falso, la
que en primera instancia fue aceptada, y sólo fue revocada después de que los opositores
XI
presentaban una queja en los tribunales, enseña la debilidad de las instituciones y quizás es
fortalecida por los poderes enormes que tiene un actor como MSX.
Un aspecto importante en el proceso de litigación es la discrepancia entre la Ley de Minería y la Ley
Agrícola. Ley de Minería de México considera que la minería es de beneficio para toda la sociedad.
Siendo así, cualquier tipo de exploración, explotación y beneficio de minerales debe 'tener
preferencia sobre cualquier otro tipo de uso de la tierra', como la agricultura y la vivienda (Herman
2010, Gobierno de Ontario 2011). Sin embargo esto no es de conformidad con el artículo 75 de la Ley
Agraria de México, que establece que "en los casos en que las tierras han demostrado ser de utilidad
para la población del ejido, los usos comunales el cual el ejido participa puedan ser priorizadas"
(Herman 2010; p.84). El pluralismo jurídico dentro de estas dos leyes han demostrado estar a la raíz
del conflicto en Cerro de San Pedro. Una rectificación en el artículo sexto de la Ley de Minería
permite la ocupación de tierra para ser enajenada a través de "ocupación temporal" (Herman 2010),
una disposición que permite la actividad minera ocupar tierras, bajo otro tipo de uso de la tierra con
objetivos a favor de la actividad minera. La tierra en Cerro de San Pedro ha sido tomada por una
ocupación temporal, sin embargo esto no quita las contradicciones entre la Ley Agraria y la Ley
Minera. Aún no está claro qué ley reemplazará a la otra y hasta la fecha, la batalla legal por la
propiedad de la tierra en el caso de Cerro de San Pedro continúa en los tribunales mexicanos.
La provisión de ocupación temporal que es parte de la Ley de Minería, refuerza aún más la
desigualdad entre las leyes y, sobre todo, debilita la posición de los titulares vis-à-vis la empresa
minera. Si titulares no están de acuerdo con un contrato de arrendamiento, se enfrentan al riesgo de
tener sus tierras ocupadas por medio de una ocupación temporal, perdiendo todo lo que tienen. En
ese sentido la disposición de ocupación temporal no es más que una medida para proporcionar las
poderosas empresas mineras con el recurso deseado, poniendo a los habitantes de la zona en juego y
debilitando gravemente la posición de negociación que normalmente hubieran tenido cuando un
actor quiere alquilar la tierra. En este sentido, las discrepancias entre la Ley de Minería y la Ley
Agrícola han cambiado la conceptualización de los derechos a la tierra no sólo para los habitantes de
Cerro de San Pedro: se encuentran en la base de muchos conflictos mineros en todo México. El
resultado de los procesos judiciales, en que una ocupación temporal puede anular los títulos de
propiedad "inalienables" de los ejidos, inherentemente significa que todo el país puede y va a poner
ejidos fuera de juego a favor de las empresas mineras. Las discrepancias entre las dos leyes debilita la
posición de los ejidatarios, quienes ya se encuentran en una posición de desventaja vis-à-vis los
actores enormemente poderosos como empresas mineras (extranjera), los cuales tienen el dinero,
los medios y los conocimientos para modificar la ley hacia su beneficio. De esta manera las leyes
mexicanas quebrantan las posibilidades de comunidades rurales en mantener sus formas de vida, y
así, irónicamente, alcanza todo lo contrario de lo que una vez fue pensado después de la Revolución
Mexicana.
Punto 6. TLCAN – Acuerdos internacionales influyen la toma de decisiones nacionales y estatales.
Cuando se instalaron el TLCAN, uno de los puntos de preocupación era el ‘trato equivalente’: es la
intención del TLC que las inversionistas extranjeras (las que participan en el TLCAN) reciben el mismo
trato que empresas autóctonas, y que están protegidas de la expropiación por todos los niveles del
gobierno. En el capítulo once del TLCAN se incorpora una supuesta protección inversionista-Estado,
lo que da un inversionista el derecho a desafiar al gobierno por razones de incumplimiento de los
XII
acuerdos alcanzados en el TLCAN, en un tribunal internacional la cual reemplaces la legislación
nacional. Originalmente, este mecanismo de protección se entiende como una medida defensiva
para proteger a las empresas extranjeras en contra de las acciones gubernamentales arbitrarias e
irrazonables, pero la disposición ha causado efectos secundarios no deseados e imprevistos: 1)
Permite a las empresas extranjeras que operan en el país de acogida, pero en el caso de un disputo,
pueden ir directamente al proceso de arbitraje internacional y así evitar los tribunales nacionales, y
2) los bajos costos y la facilidad con la que un procedimiento puede iniciarse ha causado que esta
posibilidad han sido utilizados a menudo por las empresas extranjeras que desean protegerse de la
adopción de nuevas leyes o políticas que podrían tener un impacto económico negativo en ellos
(Mann et al. 1999, Nogales 2002, Herman 2010)
Incluyendo el capítulo 11 del TLCAN, las empresas extranjeras se les da la oportunidad de evitar la
legislación nacional y operar directamente bajo las reglas y regulaciones del TLCAN. Esto es
preocupante, ya que sólo las empresas y los gobiernos están autorizados en la presentación de
quejas bajo el régimen del TLCAN: comunidades o individuos locales no tienen la posibilidad de
dirigir el TLCAN. Por lo tanto, el poder que tiene el TLCAN para influir y/o invalidar la legislación
nacional, puede tener consecuencias graves para las comunidades locales; ya que ellos no puedan
cooperar igualitariamente en los procesos de TLCAN.
Los cambios en la conceptualización de los derechos por agua y tierra también tienen efecto en la
distribución y la operacionalización de estos derechos. Una consecuencia de la conceptualización de
los derechos a la tierra es que, debido a la ocupación temporal, los ejidatarios de Cerro de San Pedro
ya no pueden acceder a una gran parte de sus tierras. MSX ha ocupado y establecido barreras en la
zona, extrayendo todos los recursos cruciales para comunidades rurales. En el momento en que la
tierra sea devuelta a los ejidatarios en 2037, la mayor parte de los valiosos recursos habrán
desaparecido; además la pregunta es, si la tierra alguna vez volverá a ser apto para otros usos, como
la agricultura (para el que fue pensado originalmente en la Ley Agraria). Cuando se trata de la
distribución de los derechos de agua, vemos que MSX ha obtenido concesiones para la extracción de
un millón de m3. Esto, sin embargo, no tiene obvios efectos directos en la distribución de agua a los
habitantes de Cerro de San Pedro. Se les proporcionó agua antes de que llegara MSX, y todavía se
están provistas de agua. La autoridad de la toma de decisiones sigue estando con Conagua, y la
llegada de MSX no cambió esto. Comunidades siguen teniendo acceso al agua; sin embargo, existe
preocupación por la calidad y, finalmente, la cantidad de agua disponible. El hecho de que el agua no
es visible en el paisaje (el agua potable se extrae de un tubo de pozo. profundo), posiblemente, hace
que las preocupaciones sobre las capas freáticas disminuyan su intensidad . No obstante, algunas
comunidades cerca de La Zapatilla y Cerro de San Pedro no tienen acceso al agua; los habitantes
reciben su agua con pipas, mientras que a pocos kilómetros por la carretera, hay pozos y MSX extrae
un millón de m3 de agua anuales. Según las activistas, esta no se alinea con el agua como un derecho
humano y ellos sostienen que la distribución de los derechos de agua no está dividido de manera
justa. Sin embargo las prioridades del gobiernos están más alineadas en abastecer agua para la
actividad minera que para abastecer agua para las comunidades. Al parecer los intereses
económicos prevalecen sobre los intereses sociales.
Los cambios en las prácticas de manejo de tierras y agua no siempre se han referido a MSX. La
historia particular de Cerro de San Pedro ha causado que la mayoría de las personas hayan
XIII
abandonado la zona después de las 1950sen parte debido a este éxodo, y por otra parte debido a las
duras condiciones climáticas y los suelos pobres, ya que no se cultivaba en la mayoría de los campos
durante la segunda mitad del siglo veinte. A pesar de que muchas personas comenzaron a trabajar
para MSX cuando comenzó la mina (especialmente los habitantes de la Zapatilla), la reducción de la
actividad agrícola también tenía causas socio-económicas y climáticas. Sin embargo, el hecho de que
para los agricultores que quedan en la zona, 373 hectáreas de tierra ya no eran accesibles para su
ganado, esto está claramente vinculado a la presencia de MSX. También los cambios en el paisaje
causados por la actividad minera han cambiado profundamente los patrones de drenaje naturales de
la zona: algunos ríos están bloqueados, y los antiguos estanques ya no existen. Esto ha tenido un
impacto para los agricultores, dado que su ganado ya no puede hacer uso de estos estanques.
Además, otras formas de hacer uso del paisaje que se estaban desarrollando justo antes de que MSX
llegara en 1996, como por ejemplo, el turismo el cual perdió su potencial debido a la llegada de la
empresa minera.. En este sentido la llegada de MSX ha tenido un claro efecto sobre la gestión de la
tierra y el agua en el Cerro de San Pedro.
Los conceptos más valiosos usados en esta tesis son el de la ecología política, la teoría del discurso y
las relaciones de poder, la ‘glocalización’ y el pluralismo jurídico. El conflicto mediante estas bases
teóricas puede ser analizado de una manera más profunda, permitiendo conocer de forma detallada
la formación, expresión y manejo. Estas teorías permiten cuestionar los argumentos que son
considerados verdaderos en un principio y evaluar motivaciones políticas subyacentes e influencias
de las relaciones de poder. El Cerro de San Pedro es un claro ejemplo del manejo de influencias
políticas, cuando el agua fue etiquetada como ‘escasa’, la empresa minera MSX lograba obtener
concesiones de extracción de un millón de m3 de agua al año. Por lo tanto, el termino de escases del
agua varía dependiendo intereses políticos, en los que se pueden hacer excepciones fácilmente.
Además, la forma en que MSX opera, incrementa los niveles de poder. La creación de propio
conocimiento, por ejemplo los estudios sobre la calidad del aire, agua y suelo mejoran aún más la
posición de poder de la empresa minera. Esto demuestra claramente cómo MSX ha logrado
establecer vínculos firmes entre los elementos del triángulo Foucault: el poder, el conocimiento y la
verdad. El objetivo de mirar el fenómeno usando estos conceptos no es tanto por descubrir la
"verdad" sino en analizar profundamente las palabras y las acciones, reduciendo así problemas en
comunicación y previniendo verdades absolutas.
En conclusión, los cambios en los derechos de tierra y agua en el Cerro de San Pedro son el resultado
de una compleja interacción entre los diferentes actores involucrados. Los asuntos legales, en la raíz
del conflicto fueron habilitados por el gobierno mexicano (local, estatal y nacional), y la empresa
minera MSX, los cuales han utilizado hábilmente los vacíos y ambigüedades de las leyes para alcanzar
sus objetivos particulares. Así mismo, los acuerdos internacionales como el TLCAN han tenido un
profundo impacto en el proceso de litigio, cuestionando la ética en el manejo del poder. Los actores
que viven las consecuencias de la toma de decisiones son los ejidatarios y habitantes del Cerro de
San Pedro, los cuales se oponen a la mina, y luego de que MSX abandona la operación en la zona, los
habitantes no tienen posibilidades de trabajo, los recursos naturales han sido explotados en su
mayoría y la calidad ambiental ha disminuido notablemente.
XIV
Table of contents
Introduction ............................................................................................................................................. 1
Chapter 1. Set-up of the research ........................................................................................................... 3
1.1 Why this research? .................................................................................................................. 3
1.2 Research objectives and questions ......................................................................................... 3
1.3 Concepts and theories ............................................................................................................ 5
1.4 Research methods ................................................................................................................. 13
Chapter 2. Setting the scene ................................................................................................................. 15
2.1 Cerro de San Pedro: a town with a mining history ............................................................... 16
2.2 Contamination caused by mining activity ............................................................................. 19
2.3 Law and legislation on mining ............................................................................................... 21
2.4 Water use and the aquifer in San Luis Potosí ....................................................................... 28
Chapter 3. Litigating for permits ........................................................................................................... 31
3.1 Who gets access to the land? The struggle over land rights ................................................. 31
3.2 The Environmental Licence and the Land Use Change Licence ............................................ 33
3.3 The water use permit ............................................................................................................ 37
Chapter 4. Livelihood practices in a changing environment ................................................................. 40
4.1 Changing daily land and water management practices ........................................................ 40
4.2 Life histories of two local inhabitants ................................................................................... 44
Chapter 5. Analysis of the conflict using the ERA framework ............................................................... 50
Echelon 1 - Access to and withdrawal of resources .................................................................... 50
Echelon 2 - Contents of the rules ................................................................................................ 52
Echelon 3 - Decision making authority ........................................................................................ 54
Echelon 4 - Discourses ................................................................................................................. 57
Conclusion and discussion ..................................................................................................................... 63
References ............................................................................................................................................. 68
Annexes ................................................................................................................................................... a
Annex 1. Map of the open pit mine in Cerro de San Pedro .......................................................... b
Annex 2. Overview of institutions responsible for granting permits ............................................. c
Annex 3. Aerial photo of Cerro de San Pedro and surroundings (1969) ....................................... d
Annex 4. Map of the ejido Cerro de San Pedro ............................................................................. e
Annex 5. Arguments used in MSX’s discourse ............................................................................... f
XV
1
Introduction Over the past decades, the increasing scarcity of resources in combination with increased demand
has caused mineral prices, amongst which those of gold and silver, to reach an all-time high. This has
caused mining activity to become financially very attractive: in Mexico, investments in the
development of mining activities have increased from US$ 500 million in the early 2000s to US$ 4.5
billion in 2012. Mining is of great importance to the Mexican economy as mining activities contribute
to about 8% of its national GDP (Deloitte, 2012; GAES Consultancy, 2007). There are many foreign
mining companies operating in Mexico, with the majority of foreign mining businesses in Mexico
being Canadian (General Direction of Mining Development, 2014).
Even though mining might be a profitable business, the downsides of mining activity are becoming
more and more obvious. Environmental degradation, illegal land acquisition, water contamination,
corruption, violence, resistance and conflict are often associated with mining development (Sandt
2009; Wilder and Romero Lankao 2006). Campesino and indigenous communities are affected by
mining activity in the area, and livelihood strategies of mine-adjacent communities are often
endangered through decreased access to and control over the land (PBI, 2011; Sandt, 2009). Not
seldom, the economic ‘benefits’ promised by mining companies in the form of e.g. temporary
employment, do not weigh up against the losses suffered (Sandt, 2009). These negative effects often
give rise to conflicts, and unfortunately, conflict in a so called ‘mining scape’ is generally the rule
rather than the exception. In 2013, El Observatorio de Conflictos Mineros en América Latina (OCMAL
2013) registered thirteen large scale mining conflicts in Mexico, in the majority of which foreign
mining companies were involved.
One of these conflicts plays in Cerro de San Pedro, central Mexico, which is the subject of this case
study. In 1996, Minera San Xavier (MSX - Mexican tributary of the Canadian mining company
Newgold Inc.) announced it wanted to start a large open pit gold and silver mine (fig. 1) in the area,
occupying 373 ha of communal land. This was subject to great controversy as the scale and type of
mining operation puts a heavy burden on the available land and water resources, not even
Figure 1. Before and after: on the left the open pit mine in Cerro de San Pedro before 2007, when operation of the mine started. On the right the status of the landscape in 2013. The open pit mine, located about 200 meters from the centre of the village Cerro de San Pedro has caused a large conflict that continues to date. The photo on the left was obtained from the FAO, the photo on the right was taken by Jesse Samaniego Leyva.
2
mentioning the adverse environmental effects. Opposition was fierce, and several opposition groups
eventually united themselves in the Broad Opposition Front (FAO – Frente Amplio Opositor). It was
amidst great protest and violence that MSX started operating in 2007, and to date, the presence of
MSX is still disputed.
This thesis focuses mainly on land and water rights, as land and water are two of the main resources
used by mines whilst simultaneously being of vital importance for the livelihoods of inhabitants of
mine-adjacent areas. Knowing that mining often goes hand in hand with conflict over these
resources, this thesis focuses on the impacts that MSX has on the division and conceptualization of
land and water rights on neighbouring communities, and how conflict has arisen over these land and
water rights. Yet, the presence of a mine does not only bring about a change in land use; it often also
causes profound changes in the socio-economic circumstances of affected communities. When land
and water rights change, the daily exercise of these rights is likely to be altered as well. Thus the
second part of this thesis focuses on how the presence of the mining company and the changes in
land and water rights, have caused daily land and water management practices to change.
In order to realize this research, I spent three months in Cerro de San Pedro, conducting fieldwork, in
which I went many times to the mining site, had countless numbers of (in)formal conversations with
local inhabitants, opposition members, the mine, government officials and many, many more people,
and experienced a little bit of what it is like to live in a mining area. The result of my time in Mexico is
this report.
A brief outline of this thesis, so that the reader knows where we are heading: in the first chapter I
describe the set-up of the research, in which I present the research objectives and discuss relevant
theoretical bodies and concepts. In the second chapter I sketch a context to the conflict, in which I
introduce the history of mining in Mexico, legislation on mining and characteristics of land and water
use in the area. The third chapter elaborates on the litigation process that preceded obtaining the
required mining permits. In the fourth chapter the influences of the presence of MSX on daily land
and water management practices are discussed, after which the entire conflict is analysed using the
Echelons of Rights Analysis framework in chapter 5. Eventually an answer to the research questions is
given in the conclusion and discussion.
3
Chapter 1. Set-up of the research
1.1 Why this research? In the communities of Cerro de San Pedro and La Zapatilla Nueva, both influenced by the mining
activities of MSX, fertile land and water are scarce. Historically land and water were owned by ejidos,
to which land and water had been allocated after the Mexican Revolution of 1910, intended to serve
for agricultural purposes. Since neo-liberal policies of the 1990s have opened up the Mexican market
for foreign investment in the mining sector, the struggle over land and water resources and their
quality has intensified in Cerro de San Pedro. MSX, a Canadian gold and silver mining company,
arrived in Cerro de San Pedro in 1995 and has since also claimed part of the available land and water
resources. The process with which these land and water rights were obtained, however, was a
grumpy one, and to date, project opponents claim MSX is operating illegally. After years of litigating,
MSX finally obtained access to the land by means of a ‘temporal occupation permit’; water is
extracted from the local aquifer for which water permits were obtained, yet the validity of these
permits never ceased to be contested by project opponents and other critics.
Even though this case has been studied intensely, it was still unclear how the contents,
understanding and distribution of land and water property rights have changed through interference
of the mining company, and how altered land and water rights have influenced daily land and water
management practices of the inhabitants of Cerro de San Pedro and La Zapatilla. To give more insight
into this question the conceptualization (understanding, contents, formulation, and legal status),
distribution (access) and operationalization (rights in practice) of the land and water rights in this
context are analysed. As such, this research aims to contribute to deeper knowledge on and
improved insight into the impacts of mining activities on the land and water rights of affected
communities, their possibilities for developing or maintaining sustainable agricultural practices and,
eventually, their potential for creating a livelihood within these communities.
1.2 Research objectives and questions Even though many different actors are involved in a mine scape, this study is mainly focused at two
communities located in the area influenced by the mine: Cerro de San Pedro and La Zapatilla Nueva.
The reason I chose to put the main focus of this study on the communities is both due to time
restrictions and because I feel that communities deserve to receive extra attention as they often
struggle against enormously powerful actors; the mining company, the Mexican government and
international legislation such as NAFTA. In such power unequal contexts, small communities often do
not have the means or knowledge necessary to reach their goals. In order to give these people a
voice I have decided to put the main focus of my research on the impacts of mining activities on their
livelihoods.
This study has two main objectives:
Objective 1
Investigate the main impacts of the mine on the conceptualization, distribution and
operationalization of land and water rights for the communities.
This objective aims to investigate how land and water property rights have changed through the
interference of the mining company; which rights the community and the mining company are trying
4
to consolidate and/or acquire nowadays, and how they organize and strategize in order to maintain
or acquire these rights.
Objective 2
Investigate how changed land and water property rights have resulted in altering land and water use
practices, and how these changes are perceived by the community.
Do farmers currently manage their land and water resources in different ways than they did before
the mine became active? If so, why? And what has caused these changes? What is the vision of the
farmers with respect to the future of their land and water resources? And what is the influence of
the mine with respect to agricultural development in the area? Does it enable agriculture (e.g.
through regeneration and development activities) or do farmers have a different opinion about the
influence of mining activity on their agricultural practices?
By doing so, this study intents to deepen the knowledge on the actual state of land and water rights
in the area influenced by the MSX and how these land and water rights have been acquired. As such I
want to contribute to the (inter)national debate about the way in which mining activities influence
land and water security for local inhabitants, and shine a light on the process of obtaining permits
which has especially been interesting in this case. Moreover this study aims to create understanding
of how sustainable agricultural development is influenced by mining activity.
These objectives have led to the following main research question:
How has the presence of the goldmine Minera San Xavier in the district Cerro de San
Pedro, México, influenced the conceptualization, distribution and operationalization
of land and water rights of affected families in the communities Cerro the San Pedro
and La Zapatilla?
And sub questions:
1. What is the historical, hydrographical, agro-productive and political context in
which the communities affected by Minera San Xavier are embedded?
2. What are the main impacts of the mine on the conceptualization and
distribution (access) of land and water rights for the communities Cerro de San
Pedro and La Zapatilla?
3. What is the development discourse through which the mine legitimizes its
extraction activities, and how does this contrast with counter-discourses by
mine-affected families?
4. How have changed land and water property rights resulted in altering land and
water use practices, and how are these changes perceived by the affected
communities?
5
1.3 Concepts and theories In this thesis I make use of several theoretical bodies and concepts, amongst which legal pluralism,
political ecology, discourse and the Echelons of Rights Analysis (ERA). To avoid haziness over the used
terms, I explain these concepts below.
Property rights
The rights to land and water can also be defined as property rights. Property rights are defined by
Furubotn and Pejovich (1972, p. 1139) as ‘The prevailing system of property rights in the community
can be described [...] as the set of economic and social relations defining the position of each
individual with respect to the utilization of scarce resource’. This means that property rights are not
only a relationship between a person and a thing, but consist of relationships and agreements
between people in relation to the object and can hence be considered as social constructions
(Meinzen-Dick & Nkonya, 2007). Property rights do not only consist of benefits but imply
corresponding duties that apply to the holder of those rights: for example the obligatory
maintenance of canals in an irrigation system comes hand in hand with water rights. In addition,
property rights do not only determine who may use what resources, and in which way, but often also
determine who has the decision-making authority concerning these property rights. Taken together,
this determines for a large part people’s incentive to invest in and sustain the quality and quantity of
their resources over time (e.g. insecure property rights in general demotivate people to invest in
their land) (Meinzen-Dick & Pradhan, 2002).
According to Meinzen-Dick and Nkonya (2007)
several types of property rights can be
distinguished. They explain that property rights
can be public, common, private or have open
access. In the case of public property rights all
rights to the resource belong to the government,
who subsequently allocates the rights to users.
This is the case for Mexico, that has stated in its
constitution that all land and water resources in
the country belong to the state (fig. 2). Water
can be private property, but only when the
stream or well is located on privately owned
land. Common property rights refer to user
rights in which the property can be used in ways that is specified by the community. This was and still
is especially the case in the communal land use under ejido2. The ejidos have the right to allocate
land for both individual and communal use. Private property rights are rights that are held by
individuals or ‘legal’ individuals, such as corporations. Until 1992, land rights in Mexico were
allocated to groups of people (ejidos), who can nowadays transfer these communal land rights into
individual land rights. Water rights are allocated by means of grants and concessions1. The last type
of property rights is open access. In this situation anyone has unrestricted access to the resource; no
specific rights or bundles of rights are assigned to an individual in particular (Meinzen-Dick and
Nkonya 2007).
2 Ejido: a communal type of land management present in Mexico. For more information on land rights see chapter 2.3.
Article 27 of the Constitution establishes textually that:
“Ownership of the lands and waters within the
boundaries of the national territory is vested originally in
the Nation, which has had and will have the right to
transfer the ownership of the latter to private parties,
thus constituting private property”.
“…ownership by the Nation is inalienable and
imprescriptible, and the exploitation, use, or
appropriation of the resources in question, by private
persons or by companies constituted according to
Mexican laws, may not be undertaken except through
concessions granted by the Federal Executive Branch, in
accordance with rules and conditions established by law.”
Figure 2. Description of property rights in Article 27 of the
Mexican constitution (Conagua, 2012b).
6
Conceptualization, distribution and operationalization of land and water rights
In the research questions I talk about conceptualization, distribution and operationalization of land
and water rights. To make clear what exactly I mean with these terms, a short explanation on these
topics:
Conceptualization of land and water rights:
Although property rights have both local/customary meanings as well as legal/official formulations,
here I concentrate on the way in which property rights were expressed, understood and altered in
the official/legal connotation. Hence, law and legislation on land and water rights is studied and
described in what ways these rights changed, before and whilst MSX operates the mine in Cerro de
San Pedro. The more general historical developments and changes in the laws are elaborated, as well
as context-specific events that have altered the conceptualization of land and water rights for local
inhabitants of Cerro de San Pedro. For analysing this, the Echelon of Rights Analysis (ERA) framework
will serve as a guide: the conceptualization of property rights refers mainly to ERA level 2 and 3
(explained later in this chapter).
Distribution of land and water rights:
The arrival of a new stakeholder redefines the way in which access to, and decision making over, land
and water rights is distributed: that is, the question of allocation. This part looks into how land and
water resources, and their legal ownership rights, are divided in the specific case. It looks at who has
access at which times, and how this access is arranged. Which conditions are imposed on accessing
the land and water? And who gets to set the criteria for these conditions? Or, who is entitled to
making decisions? This part of the research aligns with ERA level 1, 2 and 3.
Operationalization of land and water rights:
Altered conceptualization of land and water rights brings about changes in the day-to-day practices
for local inhabitants. In this part I will look mainly at how the property rights are being exercised in
practice. In this case the link will be made mainly with land and water management practices that are
being used in the communities that are subject in this study. An essential question within this
domain: what is the effect of the redefinition (or alternative interpretation) of property rights on
how land and water is managed in practice?
Legal pluralism
Property rights are defined by authorities. Authorities can exist in different forms: it could be vested
in international treaties, national government, irrigation or development projects, local authorities
that back up customary law, or even religion. Yet, not only the type of authority can diverge: also the
different levels of (official) law, created by the same authority, can contradict. Laws on different
levels are not neatly separated; rather, they overlap and influence each other (Meinzen-Dick and
Nkonya 2007). Thus, legal pluralism can be understood as the existence of multiple governance
systems within one geographic area, or the existence and interactions of contradicting laws within
one governance system, which is also known as intra-systemic legal pluralism (Boelens et al., 2005).
Different domains, such as the natural surroundings or more legislative issues such as (inter)national
agreements all assert influence on each other and the eventual practice of land and water rights on a
local level. Most of the types of laws and domains mentioned in figure 3 form a relevant contribution
to law-making, and a claim on property rights could be based on several of the available domains and
7
law types. In practice people may
choose from one or more ‘legal’
frameworks as the basis for their
claims on a resource. Which
framework is chosen, largely
depends on the type of governance
is acknowledged by that
person/group/institution, and which
type of legal framework most serves
their needs. A few examples of
possible domains and types of law
that could be used in the formation
of arguments is displayed in figure 3.
This type of ‘shopping’ through law
and legislation is also called ‘legal
shopping’ or ‘forum shopping’
(Benda-Beckmann, 1981). Which law is accepted and even enforced depends on power and social
relationships between the stakeholders (Meinzen-Dick & Pradhan, 2002). Hence property rights in
theory might differ substantially from property rights in practice: different types of law co-determine
which law is being applied in practice and these need not necessarily reflect statutory law.
Power, knowledge and discourse
When wanting to understand the processes that determine the public opinion on, and acceptation
of, the mining company in Cerro de San Pedro, it is important to shine some light on the arguments
used by both the mining company and mine-opponents, aimed at justifying/opposing the mining
activity in Cerro de San Pedro. Doing so requires the clarification of the terms discourse, power and
knowledge, and their interrelatedness.
In explaining what is meant with a discourse, and how discourses are linked to power and
knowledge, I use the thoughts elaborated by Foucault. Starting at the basics: a discourse can be
considered as “a set of statements or beliefs which produce knowledge that serves the interest of a
particular group or class” (Hall, 1992, p. 202). Feindt and Oels (2005) argue that on top of this, two
different concepts of discourses can be distinguished: the non-Foucaultian and the Foucaultian
concept. The non-Foucaultian concept of discourse considers a discourse to consist mainly of
language; a discourse is made up out of words and is a linguistic play; the Foucaultian concept of
discourse considers discourses not only to consist of language, but also of the actions one takes
conform this discourse. Hence the latter concept of discourse encompasses a much larger definition
of discourse (Feindt & Oels, 2005). But why are discourses so important? Discourses are used in
constructing our own versions of the truth (and interchangeably), a set of arguments that altogether
justify our viewpoints. Yet what determines whether something is accepted as a ‘truth’, or whether it
is rejected? Foucault reasoned that our modern society has different ‘regimes of truth’, and reasons
that these regimes of truth in fact are socially constructed ideas and beliefs, from which a society
eventually decides what is ‘true’ and what not (‘rules of right’). These regimes of truth are backed up
by institutions and discourses, and are consequently being reinforced by e.g. our educational
systems, media and ideologies. Deducting hereof, Foucault states that there is no absolute truth.
Figure 3. How different domains and types of law influence local law. Source: Boelens (2010)
8
Instead, truth regimes are social constructions which are constantly prone to change (Feindt & Oels,
2005). In a society there is not so much a search for the absolute truth as much as a battle about ‘the
rules according to which the true and false are separated and specific effects of power are attached
to the true’, or, ‘the status of truth and the economic and political role it plays’ (Foucault, in
Rabinow, 1991, p. unknown).
A discourse, or a ‘truth’, is intrinsically linked with power relations. According to Foucault, discourses
can create knowledge, and in the proclaiming or imposing of this knowledge on the other party,
power relations have a large influence (Hall, 1992). So to speak, truth creates power, but power also
creates truth. An actor is able to create a certain new ‘truth’ and impose them on other parties; yet
the power position of this actor determines for a large part whether this new truth is accepted
widely, or not (Dominguez, 2010). The process also works the other way around: a discourse can also
be the means through which power circulates (Hall, 1992). Power thus depends on knowledge and
on discourses that are accepted as truths in our society, but at the same time, power produces this
knowledge . “Power, thus, produces reality, knowledge and truth claims, it even produces the ways
in which ‘truth is made true’”(Boelens, 2008, p. 17). Foucault (1977) summarized this
interdependency in the ‘Foucault triangle’ (fig. 4):
It is important to realize that discourses are not innocent tools: Foucault explained that discourses
often serve to justify actions that, in itself, are not necessarily in the best interest of other parties
(Hall, 1992). How do actors justify their viewpoint and actions? Or, going even one step further, how
do they make their standpoint seem the preferable one? It is because of this that the discourse
analysis is part of this thesis: the use of discourses is especially interesting in the way environmental
problems are perceived and dealt with. Feindt et al. (2005, p. 162) explain that the ‘articulation of an
(environmental) problem shapes if and how the problem is dealt with. The (environmental) discourse
might lack resonance amongst the relevant public’. This is elaborated in the following part on
political ecology. In investigating how MSX constructs its discourse, and comparing this with the
discourse of mine-opposing groups, relevant information on the present ‘regimes of truth’ and
underlying ‘rules of right’ can come up.
Political ecology
The concept of political ecology plays a large role in this thesis, as political ecology focuses on how
environmental issues, such as pollution or soil erosion, are highly political. In explaining the focus of
political ecology, Bryant (1998; p. 79) states the following: “Political ecology examines the political
dynamics surrounding material and discursive struggles over the environment in the third world. The
Power
Knowledge Truth
Figure 4. The circular relation between power, knowledge and truth (Foucault, 1977).
9
role of unequal power relations in constituting a politicized environment is a central theme.
Particular attention is given to the ways in which conflict over access to environmental resources is
linked to systems of political and economic control first elaborated during the colonial area. Studies
emphasize the increased marginality and vulnerability of the poor as an outcome of such conflict.
The impact of perceptions and discourses on the specification of environmental problems and
interventions is also explored leading on to debates about the relative merits of indigenous and
western scientific knowledge.”
Bryant (1998) refers in his article to Blaiki (1995), using fig. 5 to explain how gully erosion is not only
caused by poor soil management, but is influenced by political decisions taken at much higher
governmental levels. He uses this example in explaining how an environmental problem is shaped
not only by local environment, decisions, management and politics, but also by processes that play a
role on a larger scale, such as national legislation and international trade agreements. From the
scheme it becomes clear that, in this case, gully erosion is directly caused by poor land management
and overgrazing. However, going up in the hierarchy, we see that the gully erosion (box A) is, still on
the local scale, also indirectly caused by location-specific land use practices (box C), individual and
collective decision-making processes (box D and E), such as the nature of the agrarian society (who
inherits the land? How is the access to the land distributed amongst inhabitants (Bryant, 1998).
Eventually Blaiki (1995) also includes the wider contextual forces that have influence on the local
practice in box F and G, such as the nature of the state (e.g. national laws: how are land and water
rights defined, e.g., how is the political framework shaped? And to which extent can a government
enforce its legal system?), and the relevant international economy/agreements that have their
influence on national law making and lower level practices (Bryant, 1998). This schedule, now used to
explain gully erosion, could equally be applied to a mining case, as the same type of processes play a
role in other questions of environmental control and contestation.
Political ecology does not only attempt to clarify the political forces that are at the roots of
environmental problems, but also investigates which population groups are most affected by these
politics. Bryant (1998) explains that social and economic inequities often go hand in hand with the
development of politicized environments: “At a general level, research has emphasized the
marginality and vulnerability of the poor vis-à-vis social and ecological processes” (p. 85). This
observation is closely linked with the notion that social and environmental conditions are often
shaped by unequal power relations. Bryant (1998) states that power can be observed by the ability
of one actor to control the environment of the other, and explains that during history, political and
economic elites have often sought to justify their (often highly unequal) use of the environment
making use of a discourse that upholds this use as if it were for ‘the greater good’. Opposing groups
subsequently challenge these élite groups by forming their own counter discourse. Hence, Bryant
(1998) argues, an environmental conflict does not only concern material practices, but is also a
struggle over meaning.
Thus, if an environmental problem is not only about material practices but also about meaning, it is
important to realize that also the way in which an environmental problem is shaped, pronounced or
presented, plays a large role in the way the society perceives this problem. However, the selection of
which environmental problems are identified, and how they are represented is a highly political
process. Guthman (1997, p. 45) notes that the ‘production of environmental interventions is
10
intimately connected to the production of environmental knowledge, both of which are intrinsically
bound up with power relations. Therefore, the facts about environmental deterioration have become
subordinate to the broader debates on the politics of resource use and sustainable development’.
Thus, the process of knowledge production reflects, and often even reinforces, social and economic
inequities, in those cases where certain interventions may be bases on knowledge claims (Bryant
1998).
Figure 5. The chain of explanation in land degradation. This example could equally be applied in a mining case. Source:
Blaiki (1995; p.19, figure 1.2)
11
Conflict and cooperation
Since a large part of this thesis is about conflict, it is essential to understand what is meant by the
term conflict. The Collin dictionary defines conflict as “an open struggle between individuals or
groups within a society […]. In any society conflict may occur between two or more people, social
movement, interest grouping, classes, genders, organizations, political parties, and ethnics, racial or
religious collectivities” (Collins Dictionary, 1995, p. 113). This definition however, while describing the
term conflict and its actors, leaves out the external factors that shape these contradictions: the
nature of social, political, economic, cultural and institutional structures that can shape such conflicts
(DIIS, 2006; Hidalgo Bastidas, 2009). In addition, it is important to mention that the word ‘conflict’
does not necessarily bring about only negative aspects. Even though one could associate the word
conflict with war and violence (amongst others), conflict can also be the catalyst of cooperation and
the creation of strategies. Warner et al. (2004) describe how social conflict can also lead to social
change, development and the establishment of grassroots organizations (as was the case in the
water war in Cochabamba, Bolivia).
Echelons of Rights Analysis
When new stakeholders enter the playfield and claim a share of the available land and water
resources (such as MSX in the case of Cerro de San Pedro), rights to land and water resources may be
reallocated. This reallocation can be considered a consequence of interplay of norms, rules and law,
whilst being influenced by economic and political power. As Zwarteveen et al. (2005, p. 257) put it:
‘Redefinition of (water) laws and rights always causes some groups of people or noneconomic
interests such as the environment to lose, to the advantage of others.’ The conflict in Cerro de San
Pedro knows many different levels and issues, and unravelling the depths of the conflict gives one
more insight into the real (and perhaps less obvious) issues in and causes of the conflict. The
framework that I used for this purpose is the Echelons of Rights Analysis framework. This framework
is developed to distinguish several levels of abstraction within a conflict. Dividing the conflict into
these different levels of abstraction helps to clarify the phenomena that are witnessed or noticed
during the research. Boelens (2008: p. 7-8) describes these different levels of abstraction in the
Echelons of Rights Analysis (ERA).
The first level in the ERA is about conflicts over access to and withdrawal of resources. In order to
materialize these access and withdrawal rights technological artefacts, infrastructure, labour and
financial resources have to be in place (Boelens 2008). In this echelon the distribution of a resource
and how the access to this resource is negotiated and obtained is analysed. Who has access to water
and are these access rights connected to land rights, or are they separate? On which grounds are
access rights divided and allocated?
The second level in the ERA refers to conflicts over the contents and meaning of the rules and
regulations that are connected to resource distribution/management. Conflicts often occur over the
contents of rules, norms and laws that determine the allocation and distribution of a land and/or
water resource. Key elements of analysis in this field are the bundles of rights and obligations, roles
and responsibilities of users, criteria for allocation based on the heterogeneous values and meanings
given to the resource, and the diverse interpretations of fairness by different stakeholders (Boelens,
2008; Zwarteveen et al., 2005).
12
In the third level in the ERA conflicts over the decision making power are analysed. Who is entitled to
participate in questions about the division of land and water rights? Often decision making power is
only given to certain people; others are not welcome to join the process. Whose definitions, interests
and priorities prevail? Who is able to exert influence? These issues are determined as much by social
constructions as cultural norms; gender issues can also be of influence on who is able to exert
decision making power (Zwarteveen et al. 2005, Boelens 2008).
The fourth echelon is about the opposing discourses that are used by the different stakeholders to
express the problems and solutions concerning land and water rights. Different regimes and types of
representation claim the ‘truth’ in different ways and in this way legitimize their actions and the
distribution of the resources’ bundles of rights. Powerful discursive practices, according to Boelens
(2008: 8) are ‘able to link the moral, institutional and political practices with the social and technical,
human and natural and theoretical and practical worlds, as if these bonds were entirely natural.’ The
last echelon as such coherently links all echelons together.
In everyday life, different interest groups and their respective rules and rights frameworks interact
and confront each other. Whereas lawyers and state agencies might pay most attention to property
rights on a ‘legal’ scale, many of the struggles for these resources take place within the local territory.
These different levels of interaction can be acknowledged by means of the ERA (Boelens 2008).
Glocalization
The opposition against the mining project in Cerro de San Pedro knows many different forms and
types of organization. One of the most well-known opposition groups is the Broad Opposition Front,
or FAO (Frente Amplio Opositor). This thesis describes how this opposition group tries to protect its
surroundings, local livelihood and culture, through aiming and strategizing not only on the local
environment but also actively searching for international alliances and the protection of their area
using global environmental values. This strategy could be considered as a consequence of our
increasingly globalizing world, in which large companies have great international influence and can
sometimes even bypass national legislation by means of international treaties (as will be explained
later in this thesis, when elaborating on the effects of NAFTA on this mining case). As national state
decision making can, in such contexts, be bypassed, we see a large influence of international actors
directly on the local level. This process is called ‘glocalization’, described by Swyngedouw (2004, p.
25) as follows: “‘Glocalisation’ refers to the twin process whereby, firstly, institutional/regulatory
arrangements shift from the national scale both upwards to supra-national or global scales and
downwards to the scale of the individual body or to local, urban or regional configurations and,
secondly, economic activities and inter-firm networks are becoming simultaneously more
localised/regionalised and transnational.” Hence, due to the increasing globalization of our society,
small actors such as FAO also try to forge alliances with international partners, in order to protect
local values, as such being able to compete on the same international scale as their opponents (in
this case the Canadian mining company Newgold Inc.) (Urkidi, 2010). I make use of this concept as it
clearly explains one of the most important strategies of the opposition group against the mine.
Neoliberal land and water governance
The 1990s are marked by a worldwide conversion from state based, bureaucratic regulation and
market protectionism of (amongst others) land and water resources to a more neoliberal and open
13
market system in which public commodities were gradually converted to private party management.
After a severe economic crisis in the 1980s, Mexico also adopted a neoliberal strategy, at the
instance of the World Bank that would only lend money to Mexico if the country opened up its
markets for foreign investment (until then, Mexico was a very protectionist state). The
decentralization and privatization of land and water resources in favour of new actors (and
inherently new principles and power relations) is known as a shift from government to governance,
in which governance can be understood as the relationship between government and non-
government stakeholders, their private interests and objectives (Alba, 2013). The shift from
protectionist to neoliberal governance is characterized by a transition of public to private ownership,
often going hand in hand with the commercialization and commodification of natural resources and
consequent market-based exchange of these resources (Bakker, 2005). The specific impacts for the
mining sector within Mexico and the process of implementation of the neoliberal policies are
described in detail in chapter 2.3.
1.4 Research methods I approached the conflict in Cerro de San Pedro, Mexico as a case study and studied it during three
months of field work (September 2013 - December 2013), using a mix of different researching
techniques based on qualitative sociology and activist research. During these three months I lived in
the city of San Luis Potosí, located at about 18 kilometres to the west of Cerro de San Pedro, whilst I
shuttled back and forth between the two places. On several occasions I have stayed in Cerro de San
Pedro for a number of days, allowing me to explore the area and get to know the local inhabitants.
On top of that, hikes through the area, field trips with local farmers and long nights with Cerro de San
Pedro’s residents have given me insight into the functioning of the village.
The main methods used in this research were interviews, observation and literature research, on
top of which countless informal conversations during unplanned encounters. Of great importance for
my data collection were the in-depth interviews that I conducted with key actors in the mining
conflict, such as representatives of MSX, members of the opposition group FAO, inhabitants from
both Cerro de San Pedro and La Zapatilla Nueva, and researchers (previously) linked to the case.
Moreover, observation and literature research played a great role in obtaining information. After
data collection was completed, the conflict was chronologically reconstructed and the different
discourses, power struggles and interests of stakeholders were identified and analysed.
During the field research I have conducted several semi-structured and open interviews, with
government officials, the mining company MSX, local inhabitants (both in favour and against the
mine), researchers and opposition members. The interviews were conducted in Spanish and
especially during interviews with local inhabitants, Jesse Samaniego Leyva, Mexican citizen, helped
me out with the most difficult translations. For privacy reasons the names of the interviewees are
not mentioned. During the interviews I asked, amongst many, many others, questions about the legal
status of MSX, the opinion on the presence of the company, how agricultural practices were
influenced when MSX arrived and how people perceive a future without MSX.
Quotes are taken from my own interviews and from the video material that was provided to me by
David Covarrubias, member of the opposition movement FAO.
Literature research, entailing the collection and revision of previous research material, historical
archives, registers, official censuses data and newspaper articles has enabled me to obtain a clear
14
overview of the depth and complexity of the casus. A lot of detailed information was provided to me
by the Mexican INEGI in San Luis Potosí, the National Institute for Statistics and Geography (Instituto
Nacional de Estadística y Geografía), that has a large database containing both actual and historical
archives.
Ultimately observation has been used as a way to indulge myself in the context of the conflict. Not a
single story could explain the context as well as being in the surroundings of the mine, and seeing
with my own eyes the socio-economic circumstances of the local inhabitants, the extent of impacts
of the mining activity on the physical and social environment, and observing daily life within the
affected villages. Several times I have stayed a few days within Cerro de San Pedro, which gave me
the chance to experience, although very briefly, the impacts of the mine on the daily lives of the
inhabitants. During a field trip with one of the few farmers still active in the area I could see with my
own eyes the difficulty a farmer faces in the area and the large influence the mining company has
had in the area. Being a foreigner inherently meant I was not acquainted with the history, cultural
setting, or institutional background of this conflict, essential for understanding decisions taken or
arguments given. In that sense, being able to observe society, not only in Cerro de San Pedro but also
in the city of San Luis Potosí, where I lived, has allowed and enabled me to better place the conflict
into its context, which is essential for conducting a good and concrete analysis.
15
Chapter 2. Setting the scene The municipality of Cerro de San Pedro, located in the state of San Luis Potosí, central Mexico (fig. 6),
has been the stage for a large mining conflict since 1996, when mining company MSX announced it
wanted to start exploiting the gold and silver reserves in the area by means of an open pit gold and
silver mine. This conflict has a complex background which has roots in both historical components,
environmental characteristics, politics, laws and policies. In this chapter the background to this
conflict is elaborated.
The climate in Cerro de San Pedro is semiarid with an average rainfall of 400 mm per year, mainly
occurring in the months of June through September. Potential annual average evaporation is 2000
mm. The soil is shallow and not very productive (fig. 7). The municipality is located on the western
edge of the ‘Sierra de Alvarez’, a densely forested area, and originally also consisted of large forest
areas. However, excessive deforestation in the early 17th century for mining purposes (fuel wood was
the main source of energy for silver smelting and refinery) (Studnicki-Gizbert & Schecter, 2010), has
caused forest to be a scarce good in Cerro de San Pedro nowadays. Scrub land is the main type of
vegetation (Carrillo-Rivera et al., 1996; INEGI, 2014).
Cerro de San Pedro has a long mining history, and hence, its inhabitants have always been associated
with mining as their main economic activity. Nevertheless, agriculture also played a large role in the
livelihoods of the inhabitants, especially after the shutdown of ASARCO in 1948. People still living in
Cerro de San Pedro started looking for other sources of income and whilst some continued working
in artisanal mines, subsistence farming provided food for many families as well. According to Don
Gutiérrez, one of few farmers still active in the area, currently an estimated 10 farmers are still
operating within Cerro de San Pedro. He states that the majority of the people has sought work in
other industries or works for the mine3.
3 Data acquired during interviews, October 2013, Cerro de San Pedro.
Figure 6. Location of the municipality of Cerro de San Pedro in Mexico (Martínez Chaves et al., 2010).
16
2.1 Cerro de San Pedro: a town with a mining history Before the Spanish conquistadores arrived to Mexico in the 16th century, the area was inhabited by
the indigenous population, the Huachichiles. According to the legend, some Spanish missionaries
who were visiting the area in 1570 saw a Huachichile man covered in gold dust. When asked where
he had retrieved the gold from, the man answered that the gold dust could be found in a place close
by. The missionaries briefed their findings to Captain Caldera, commander in the Spanish army, who
sent a group of miners to Cerro de San Pedro to explore the area for the presence of precious
minerals. The miners found more than sixty places containing precious minerals and in 1583 Real de
Minas Cerro de San Pedro was founded (mines belonging to the Spanish Crown). The indigenous
population, however, did not agree with the invasion: it took the Spaniards close to forty years of
war before they could convince the Huachichiles to live in peace with them (Vargaz-Hernandez,
2006).
The gold and silver deposits were found in Cerro de San Pedro, yet the place did not provide
sufficient water for an entire settlement, let alone for the processing of the minerals. In search of
water the Spaniards finally settled down in the Valle de San Luis Potosí (Valley of San Luis Potosi),
about 18 kilometres west of Cerro de San Pedro, and founded the city of San Luis Potosí. This valley
was considered a better place for a settlement than Cerro de San Pedro as it contained more water
sources (subterranean), essential for founding a city. The Spaniards decided to add “Potosí” to the
name of the city, as a reference and tribute to the highly productive Spanish mines of Potosí in
Bolivia. To date, the hill of Saint Peter (‘el Cerro de San Pedro’) is still considered as the basis for the
foundation of San Luis Potosí, and a drawing of this hills adorns the emblem of the city (Reygadas &
Reyna Jiménez, 2008).
Since the foundation of Real de Minas de Cerro de San Pedro, different mining companies have come
and gone in Cerro de San Pedro. The last big enterprise active before the current mining company
(the American Smelting and Refinery Company, ASARCO) was active until 1948, in which year the
company abandoned operation after a strike of its employees. ASARCO provided one of the few job
Figure 7. The shallow soils and dry conditions make the Cerro de San Pedro area not very suitable for agricultural production. In the distance a reforestation project (contour lines). Photography: Jesse Samaniego Leyva.
17
opportunities in the area and after its departure the population fell into poverty. The majority of the
miner families left the town to work in other mines in the north of Mexico; others left to San Luis
Potosí in search of a job. On its peak, Cerro de San Pedro had close to 5000 inhabitants; currently
only about one hundred people remain. Due to the exodus that has taken place in the second half of
the 20th century, Cerro de San Pedro is currently considered a ghost town. The town has ruins of
houses, shops, churches and a school. There are still two churches that open their doors in the
weekend; moreover, the municipal council is seated in Cerro de San Pedro. Was Cerro de San Pedro
once the largest town of the municipality, currently Portezuelo (at about 6 km from Cerro de San
Pedro) houses the majority of the municipality’s inhabitants. Cerro de San Pedro has very few
services and the few remaining children have to go to school in close-by villages, as the only school in
town has closed its doors (Gordoa, 2011; Herman, 2010; Reygadas & Reyna Jiménez, 2008; Vargaz-
Hernandez, 2006).
In the ‘80s and 90s of the twentieth century, the remaining inhabitants tried to develop Cerro de San
Pedro and create job opportunities for its inhabitants. Until 1998 three small artisanal mines were
active (Newgold Inc., 2012a), and the numerous old mining tunnels and the hilly landscape attracted
many local tourists. By the time MSX arrived to Cerro de San Pedro, several initiatives to develop
Cerro de San Pedro as a tourist destination had started, such as the build of a hotel, restaurants and
museums. Many inhabitants of Cerro de San Pedro explained that before the arrival of MSX they
used to make a living by giving tours through the old mining tunnels, and saw this as a possibility to
revive the empty village. However, nowadays this livelihood generation activity is not possible
anymore as the majority of the tunnels were located in what is now the open pit4. Currently Minera
San Xavier is exploiting an open pit gold and silver mine in Cerro de San Pedro.
As soon as MSX announced it wanted to exploit the minerals by means of an open pit mine,
opposition against the project started. At the beginning, Cerro de San Pedro’s inhabitants were quite
unanimous in their opposition against MSX and united themselves in several opposition groups. In
the beginning opposition groups based their arguments on cultural grounds, aiming at the defence of
Cerro de San Pedro (MSX’s initial idea was to completely relocate the entire village, but these plans
later changed); after MSX had published its environmental impact assessment, opposition also
focused on the environmental issues, united in groups as Pro San Luis Ecológico and the Broad
Opposition Front (FAO, Frente Amplio Opositor). These groups have been active since the arrival of
MSX in 1996 and currently still are.
4 Data obtained during interviews with inhabitants of Cerro de San Pedro, Sept-Dec 2013.
Figure 8. The MSX open pit mine with on the right one of two waste dumps (Photography: Jesse Samaniego Leyva).
18
Minera San Xavier
Minera San Xavier, the Mexican tributary of the Canadian mining company New Gold Inc., arrived in
1996 in Cerro de San Pedro for exploration purposes and started operating in 2007. MSX is operating
an open pit gold and silver mine, covering 373.4 hectares of land which was obtained from three
different ejidos5. The mine consists of an open pit, two large waste dumps and a lixiviation area (see
fig. 8 to 10 for photos; in annex 1 a map of the mine is given). The open pit of 63.2 ha is located
about 200 meters from the city centre of the village of Cerro de San Pedro. Two waste dumps (145.5
ha) are bordering the open pit on its north and south side, and the patio for lixiviation purposes
(122.7 ha) is located about two kilometres to the south.
The mining process
After placing and blasting the explosives in the soil,
the mineral-rich debris is transported from the open
pit mine to the lixiviation area after which a solution
of water and cyanide is applied to the debris. Daily,
16 tonnes of cyanide are applied to the lixiviation
area, mixed with 32 million litres of water. The water-
cyanide solution trickles through the pile and when
drained at the bottom, the cyanide is enriched with
silver and gold particles. The enriched solution is put
into an oven and what is left is doré, a solid mixture
of gold and silver. An overview of the mining process
is given in figure 11 (Newgold Inc., 2009; Santacruz de
Leon, 2008).
Originally the project consisted of four phases: 1) preliminary studies of the site (finished in 1997); 2)
preparation of the site and construction of roads, the mine, offices and other installations (scheduled
for 1998); 3) operation and maintenance of the mine (1999-2007) and 4) abandonment of the site,
expected to take place in 2008. However due to the fierce opposition and the large number of
lawsuits and legal interventions, operation of the mine didn’t start until 2007. Due to the favourable
gold prices from 2007-2012, MSX decided to add a fifth phase to the project in 2013, in which an
additional 32 hectares were to be exploited, bordering the open pit (Newgold Inc., 2012a). However,
phase V was already in progress for a few months when on March 18, 2014, MSX announced it would
5 Ejido: a communal type of land management in Mexico. For more information see chapter 2.3 on land rights.
Figure 10. View on the open pit from above, with the village of Cerro de San Pedro in the right upper corner (FAO, 2013).
Figure 9. Lixiviation area located close to the relocated La Zapatilla village (photography: Jesse Samaniego Leyva).
19
Figure 11. Simplified overview of the mining process in Cerro de San Pedro (after New Gold Inc., 2012).
stop operating in Cerro de San Pedro. Reduced gold prices and lower gold and silver yield have made
operation of the mine unprofitable. Abandonment of the site is planned to start in August 2014, but
as the mine has previously stated it would operate until 2020, project opponents doubt whether the
shutdown of the mine in 2014 will actually take place (FAO, 2014b; Medrano, 2014).
The main issues and worries of project critics concerning the mining operations on site touch upon
1) contamination of sub-and surface water in case of breakdown of the system, or insufficient
neutralizing of the lixiviation area after operation has ceased; 2) doubts about the stability of the
lixiviation piles; 3) access to the lixiviation pools, especially for fauna such as cattle and birds; 4) dust
pollution (Gordoa, 2011). Other issues are concentrated around water use, land access,
environmental pollution, etc. This is explained in more detail in chapter 5. In the next part I explain
how previous mining activity has contaminated the municipality of Cerro de San Pedro, what the
consequences of this contamination are and what will happen after MSX stops operating.
2.2 Contamination caused by mining activity
The current mining activity clearly has had large impact
on the environment, yet contamination already started a
much earlier. Next to the road to Cerro de San Pedro large
piles of old mining disposals can be found (fig. 12) that
still contaminate the area. These tailings, located along
the course of the river, were deposited by ASARCO and
were not removed after ASARCO stopped operating in
1948. MSX has promised to remove the tailing, which is
part of their discourse. In 2009 they claimed to have
removed 48% of the tailings (Newgold Inc., 2009).
However, during field research in 2013 it was obvious that
some of the tailings are still present, but it is unsure
whether MSX will also remove these tailings before they
stop mining in Cerro de San Pedro in 2014.
Figure 12. Mining tailings, deposited by previous mining companies, located along the course of the river in Cerro de San Pedro. Photography: Jesse Samaniego Leyva.
20
Arsenic and lead
Mining processes have critical environmental impact as they form a large source of metals and
metalloids, polluting water, soil, and air. Hence, taking into account the large mining history of Cerro
de San Pedro, it is not surprising that the environment is polluted. Research of the Autonomous
University of San Luis Potosí (UASLP - Universidad Autónoma de San Luis Potosí) has shown that large
parts of the municipality are contaminated with heavy metals, with the most prevalent heavy metals
being arsenic and lead (Espinosa-Reyes et al., 2010; Jasso-Pineda et al., 2011; Rodriguez, 2014). On
the 28th of May 2014 the San Luis Potosí newspaper Pulso published that inhabitants of the
municipality of Cerro de San Pedro were diagnosed with high levels of lead and arsenic in their blood,
which can be traced back to mining activity (Rodriguez, 2014). Arsenic is taken up by plants,
consequently accumulating in animal/human tissue when consumed. Exposure to inorganic arsenic
can cause several health effects, such as irritation of the stomach, skin changes and lung irritation.
Very high exposures to arsenic can cause infertility and miscarriages in women, heart disruptions,
brain damage, and can damage DNA (Lenntech, 2014).
Cyanide
Besides the increased levels of heavy metals in the area, the use of cyanide by MSX also concerns
many project critics. Daily, 16 000 kg of cyanide are applied to the lixiviation area (Vargaz-Hernandez,
2006). Cyanide is known as a very toxic, and possibly deadly, compound (Lutz, 2010). This is not
surprising taking into account the history of the substance: already in the Egyptian times, enemies of
the system were poised using the seeds of peaches (that emit cyanide), and cyanide was used in the
gas chambers during the Holocaust in WWII. Cyanide is used in substantial quantities in the
extraction process of gold and silver. In 2001, 2.60 million tonnes of cyanide were produced
worldwide, of which an estimated 8-20% is cyanide that can be used in metallurgic industries. Due to
the increase in mining activity during the last decade, this number is also likely to have risen (Moran,
1998).
The large production and application of cyanide for mining industries has not failed to leave its marks
in the environment. Despite the fact that cyanide also occurs in nature, Wong-Chong et al. (2006)
claim that the majority of the cyanide that occurs in water and soil, is anthropogenic. The
combination of cyanide from natural and anthropogenic sources has led to detectable amounts of
cyanide in surface water in the US, although ‘concentrations are usually low’ (Wong-Chong et al.,
2006, p. 6). In the last decades a number of mining accidents have taken place around the world,
during which large amounts of cyanide have been released in the environment, killing fish and
severely impacting other fauna and flora (Moran, 1998). The mining industry is one of the largest
contributors to cyanide in the surface water, both from current mining activity and mining waste
disposed a long time ago (Wong-Chong et al., 2006).
The mining industry in general claims that cyanide breaks down rather rapidly, under the influence of
sunlight, and that it as such does not form a large environmental problem. However, Moran (1998)
contradicts this by stating that cyanide can form a large number of secondary chemical compounds,
which are also harmful to the environment. Yet despite the complexity of this compound, mining
regulators often only monitor the presence of three cyanide categories; other categories are often
not monitored (Moran, 1998).
21
On the 28th of May, 2014, the San Luis Potosí newspaper Pulso wrote about a cyanide spill of mining
operations in Cerro de San Pedro, with the cyanide about to enter the water of a close by drinking
pond for the cattle. The article stated that research conducted by Conagua (the National Water
Commission – Comisión Nacional del Agua) has revealed abnormal high levels of cyanide in the
groundwater. However, when asked for a response, MSX claimed that the monitoring of the wells in
the area showed that ‘everything is fine’. Pulso states that the inhabitants of La Zapatilla and Cerro
de San Pedro might be at risk, and so their cattle. The different stakeholders emit rather opposite
messages; during the interviews with inhabitants of Cerro de San Pedro and La Zapatilla, a much
heard complaint was the lack of transparency of MSX. Monitoring of the quality of soil and water is
mainly carried out by MSX, yet local inhabitants do not trust the results coming from the company.
As such, they also complained that despite the fact that the mining company provides them with
healthcare, they can only visit one doctor who is being paid by MSX. They do not trust this doctor and
expressed the wish to be able to pick their own doctor; yet, they cannot afford this and it is not being
covered by MSX. There is a deep distrust against the mining company and the Mexican government,
for lack of transparency and suspicions of corruption6.
2.3 Law and legislation on mining Gold mining in Latin America, and Mexico in particular, has taken a flight in the 1990s and 2000s, to a
large extent caused by mining restrictions in Canada and the USA and political instability in the
former Soviet Union, Asia and Africa. Moreover, domestic mining companies have increasingly
considered e.g. the U.S.’s environmental regulations and permitting process as costly and time
consuming. As a result, mining development has focused on developing countries (Urkidi, 2010). The
large increase in mining investment in Mexico (particularly through Foreign Direct Investment, FDI) in
the 1990s has coincided with large scale market liberalization and the implementation of NAFTA
(Clark, 2003). In terms of mining investment attraction, Mexico ranks fourth in the world and first in
Latin America. 70% of the total investments in the Mexican mining industry is made by foreign
companies, the remaining 30% by Mexican companies (Deloitte 2012).
The increase in mining activity has also caused an increase in conflicts. The Observatory of Latin-
American Mining Conflicts has registered 29 large-scale conflicts in Mexico, of which the majority
started in the 1990s and 2000s (OCMAL, 2014). Conflict concerning mining activity in Cerro de San
Pedro mainly concerned communal land takeover, high water demand of the mine, water pollution
and adverse environmental impacts (contamination of the environment with heavy metals, dust
pollution, extinction of rare species, etc.). A large part of the conflicts is related with the intraystemic
legal pluralism of Mexico’s legal system and with international trade agreements that overrule
national protectionist policies. In this part I give a background on these issues that have turned out to
provide the basis for the conflict in Cerro de San Pedro. Doing so requires starting at the very basics:
an explanation of the way in which land and water rights are interpreted in Mexican law. This is
followed by an annotation of a series of liberalization reforms to Mexico’s markets, and eventually
moving to the international trade agreement that has had profound effect on the presence and legal
position of foreign mining companies in Mexico: NAFTA.
6 Data retrieved from interviews with inhabitants of Cerro de San Pedro and La Zapatilla, Sept-Dec 2013.
22
2.3.1 Land rights
To explain the structure of land rights in Mexico, it is essential to understand its history. Mexico
currently has many ejidos, farmer groups that communally manage their land. During the Spanish
colonization land was difficult to acquire for many Mexicans as 87% of all land was in hands of about
0.2% of the population (the big haciendas). This unequal division of resources served as fuel for the
revolution that started in 1910. After the revolution, the new rulers wanted to riddance of the big
haciendas. Hence the constitution of 1917 declared that all lands and waters originally belonged to
the nation, who could transmit them to private parties under certain conditions. Small communities
and villages that lacked land and water resources had the right to be given these resources, which
were taken from the haciendas, respecting the small landholders. The land was allocated to groups
of previous employees of the haciendas, who were given either a part, or all, of the hacienda land. At
the same time, a ceiling was established for the maximum size of a private land holding, to prevent
returning to the situation in which land was extremely unevenly divided. The reallocated land was to
be managed collectively whilst a small part of the land could be cultivated with private crops: this
organizational type of collective land management was called an ejido and was considered in the law
as a ‘social property sector’. It was established in the constitution that the government had to
allocate land to groups of farmers and the government has done so until the reform of the
constitution in 1992 (Assies & Duhau, 2009; Finkler, 1978).
From 1910 to 1992
Under the law of ejido tenure land was a non-negotiable resource. Article 74 of the Mexican
Constitution stated that the ownership of common use land is “imprescriptible, inalienable e
inembargable”. This meant that 1) land could not be transferred to third parties, 2) land rights could
not expire, and 3) they could not be seized through an injunction. Formally this meant that land
rights were a non-marketable commodity and that the exercise of these rights was subject to federal
government surveillance. In practice however, it turned out that the exercise of rights was closely
linked with local power relations. In addition, legislation around ejidal land tenure was rather
restrictive: land could not be sold or rented; ejidatarios would formally lose their rights if they did not
work the land for a year, and membership of the ejido was controlled by the Agrarian Reform
Bureaucracy: ejido parcels and rights could only be inherited to a single descendant or the spouse, as
such to prevent fragmentation of the land (Assies and Duhau 2009).
Ejidos were installed in the law as ‘land tenure institutions’ or ‘social property’, consisting of a
General Assembly end elected governing boards. The corporate organization of ejidos implied that
there were several authorities within the ejido: the asamblea, the highest authority of the ejido
which was made up of all members; the comisariado ejidal, the board of the ejido which was selected
by the assembly; and the comité de vigilancia, which supervised the administration of the
comisariado ejidal (Assies and Duhau 2009).
After 1992
After 1992, legislation on ejidos changed. After the economic crisis the World Bank, the International
Monetary Fund and the Inter-American Development Bank demanded Mexico to restructure its
economy if the country wanted to count on future money lending possibilities (similarly, many other
Latin American countries were forced by these money lending institutes to adopt more neoliberal
state policies during the 1980s-1990s) (Achterhuis et al., 2012; Wilder, 2010). The main focus of the
23
restructuring of the economy was on opening the Mexican market for foreign investment. The social
property sector and its regulatory framework of the time did not allow for private ownership as
ejidos could not legally be privatized. This collided with the aim for increased foreign investment in
Mexico as land could not be converted into private property or be a site for investment, and could
thus not be considered a commodity. Hence, according to neoliberal policy makers, if Mexico was to
increase private (foreign) investment, also the legislation on land rights needed modification. This
was done in 1992 through a modification in Article 27 of the Mexican Constitution, to which land and
water rights belong (Herman, 2010). The main changes of the modification of Article 27 in 1992 were
as follows (Assies & Duhau, 2009):
1. Ejidos are enabled to obtain individual certificates of their land rights, if their ejido agrees.
For this, the ejido had to participate in the Programa de Certificación de Derechos Ejidales y
Titulación de Solares (PROCEDE, Program for the Certification of Ejido Land Rights and the
Titling of Urban House Plots).
2. Members of the ejido were enabled to legally rent or sell their land. In case the land is to be
sold to someone outside of the ejido, a general assembly, witnessed by a government
official, has to be held. During this assembly, which has to have a quorum of 75 per cent of
the members, two-thirds of the votes have to be in favour of the sale. In case the quorum is
not reached, a second or third meeting requires a quorum of 50 per cent.
3. Ejidatarios are no longer required to work the land personally in order to retain it. This
means that farmers can migrate to e.g. the city or the US whilst cultivating the land under a
sharecropping agreement, without facing the risk of losing their land.
4. Disputes over land rights between ejidatarios, ejidos and/or third parties are to be settled by
presidentially appointed Agrarian Tribunals.
2.3.2 Water rights
After the Revolution of 1910, Mexico created a protectionist state in which also water rights were a
non-commodity. Water rights were linked to agricultural property rights under ejidal law, meaning
that water rights could not be sold, rented out, used on other lands, or used for other purposes than
stated in the grant (untradeable water rights). This was done in an effort to secure water rights for
the ‘social sector’ of Mexico and to distribute users’ rights equally over the population, that was
previously heavily burdened by the unequal division of land and water rights under the hacienda
system (Assies, 2008).
In 1989, in preparation for the policy changes, the government created the National Water
Commission Conagua (Comisión Nacional del Agua). Conagua is a decentralized body, previously
belonging to the Secretary of Agricultura and Hydraulic Resources (Secretaría de Agricultura y
recursos Hidráulicos), and is responsible for Mexico’s water administration.
When the neoliberal policies were adopted in the 1990s, also the water law was revised. The water
law was adapted under the neoliberal premises that the old, rather static water law did not fit in with
the ‘modern’ conception of market based agriculture and the aim for higher agricultural yields. The
official objectives of liberalizing water rights were 1) to improve water use efficiency as such to
enhance water availability, 2) to improve the water quality and 3) to shift the real costs to the users,
while minimalizing environmental damage from new infrastructure or from inappropriate uses of
water (Rosegrant and Schleyer 1996). The last objective can be explained by the fact that in the late
24
1980s, Mexico’s extensive irrigation system, responsible for over 80% of the country’s national water
use, was in shambles and in great need of maintenance. Up until then, the federal government
subsidized the use of the irrigation systems for 80%, whilst end users contributed the other 20%;
annual government investment in the irrigation sector was estimated at more than US$300 billion.
Under the new neoliberal course, government spending on the irrigation system was aimed to
reduce, with the end users contributing a larger part of the costs of maintenance (Wilder, 2010).
Easter et al. (1998) explain that since the policy changes, the water users pay 100% of the operation
and maintenance costs of the irrigation scheme in the majority of the new developed irrigation
districts in Mexico.
In 1992, the new water law was formed under the Ley de Aguas Nacionales (National Water Law) and
the Reglamento de la Ley de Aguas Nacionales (National Water Law Regulations). The new water law
entails that the management of water resources is transferred to water user associations (WUA).
Water right concessions are given for a period ranging from 10-50 years, with 30 years being the
norm. All water concessions and grants are recorded in the Public Registry of Water rights,
maintained by Mexico’s National Water Commission Conagua (Comision Nacional del Agua). In this
registry all water concessions and grants are recorded, as well as their extensions, suspension,
termination, and possible transfers (Rosegrant and Schleyer 1996).
Neoliberal perceptions see water mainly as an economic good; an approach that collides with other
constructions that value water in different ways (e.g. the way in which water is valued in traditional
cultures), that consider water a ‘free’ good provided by nature, a common property to be managed
by collectives with both productive and social security/shared livelihood objectives, or the perception
of water being an essential part of ecosystems whose needs also need to be satisfied, equally with
those of other users (Wilder and Romero Lankao 2006). In this last view, the privatization of water
rights is difficult to justify as water is no economic good: it should be accessible to all parties rather
than be limited to a small group of (wealthy) users (see e.g. Achterhuis et al., 2012).
From a neoliberal point of view, such as that from Rosegrant and Schleyer (1996), the benefit of the
new water right concessions is that these are tradable: it is no longer required to use the water as
stated in the grant. There are no regulations on the length of transfers of water rights or on the
proportion of the amount of water one can trade. Transfers can be made for the entire amount of
water, for the entire remaining time of the water concession. There are regulations, however, on the
type of water transfer. These depend on the type of water transfer: if water and land rights are
transferred at the same time, no approval of the Conagua is required; however, for transfers across
different sectors (e.g. from agricultural sector to the industrial sector) approval of Conagua is
required (Rosegrant and Schleyer 1996).
Opinions about the effectiveness and (unintended) consequences of the neoliberal course taken
since the 1990s in Mexico, vary. Studies have shown that since the adoption of the neoliberal
policies, water prices have increased significantly: for example, water prices in the Altar-Pitiquito-
Caborca district (northern Mexico) have risen by 89% for wheat, 118% for table grapes, and 186% for
asparagus, which has caused many small, communal growers (ejidatarios) to abandon farming at an
accelerated pace, which de facto has resulted in privatization of the land (Wilder 2010). Wilder
(2010) claims that even though many farmers experience more political equity due to the
25
decentralization of water management, they also report worsened trade conditions, e.g. a lack of
credit, rising input costs and volatile global agricultural markets. So all in all, despite some important
gains in political equity, Wilder claims that the policy reforms have resulted in non-competitive
circumstances for even the large producers, whilst consequences for smallholder farmers are much
graver as they are struggling to sustain their livelihoods, and hold on to their land and water (Wilder
2010).
This is underlined by Swyngedouw (2005), who describes how neoliberal water reforms accumulate
water rights by disposing the same right to water from others: ‘accumulation by dispossession’. The
right to water, which once was public and accessible to everyone, is in neoliberal reforms
transformed to a private property in a legally and institutionally supported manner. Neoliberalism is
based on the argument that privatized water rights will increase water security, especially benefitting
the poor as they should be able to count on a steady water availability (E. Swyngedouw, 2005).
However in practice the opposite is often the case and in Mexico, many smallholder farmers have
been forced to abandon agriculture due to the changes in legislation.
Moreover, the decoupling of water rights from territory under the neoliberal policy, in practice often
has as consequence that water rights are transferred to the highest bidder, who does not necessarily
have any community sense or interest in maintaining community infrastructure (Achterhuis et al.,
2012). As such, community life is eroded, and partly due to the increased water prices and altered
government subsidies on agriculture, rural communities can no longer make a living from agriculture.
As a result, between 1991 and 2000, outmigration rates increased sharply from 337.000 to 530.000
people annually (Morales Moreno, 2005), and currently many rural communities are left without
young men, who resort to the USA or the city in search of a job (Quintana, 2014).
2.3.3 The Mexican Agricultural Law, the Mining Law and the Foreign Investment Law
In the 1980’s Mexico entered into a severe economic crisis and under pressure of the World Bank
started liberalizing its markets, thus aiming to stimulate the economy. The Mexican mining industry
was also to be ‘modernized’ and with help from the World Bank, Mexico launched the “Mexico
Mining Restructuring Project” (MMRP). In exchange for these modifications the World Bank offered
financial support to private companies investing in Mexico. This project, taking place from 1990-
1994, was designed to open up the previously protected national mining industry to foreign
companies. The government intended to do so and boost the sector by privatizing state-owned
mining companies, reducing mining taxes and facilitating foreign companies’ ownership of the
Mexican land. Realizing this required profound changes in the Agricultural Law, Mining Law and
Foreign Investment Law. These changes, when taken together, have stimulated foreign investment in
mining in Mexico. At the end of the project, 8.7 million hectares of land were released for mining
purposes, 17,220 new concessions were issued and the time for granting mining concessions was
reduced from five years to five months (Bricker, 2009; Herman, 2010).
Part of the market revision were the modifications to the Agricultural Law, the Mining law and the
Foreign Investment Law. Agriculture, the provision of land use titles and the social property sector
are arranged under the Agricultural Law. Mining is regulated under the Mining Law, the law that also
arranges the sale of mining concessions. Both laws belong to Article 27 of the Mexican Constitution.
Land and water rights are also arranged in Article 27. Land and water, as established in the
Constitution, are ownership of the State, that in turn has the right to give ownership titles to third
26
parties, such as in Mexico the ejidos. Moreover, the Constitution explicitly divides land into two
parts: its surface and its subsurface. The surface of the land is property of the titleholder, yet the
subsurface and its associated natural resources remain the property of the state. Hence, for a
company to obtain permission for mining a certain area, it needs both a mining concession from the
government, for use of the subsurface, and a rental/sales agreement with the landowners, for use of
the surface area (Cámara de Diputados, 2006, 2012; Conagua, 2012b).
Mexican mining law requires, in order for permits for exploration and production to be granted, to
have an environmental impact assessment (EIA) done. In order to prevent the need to conduct an EIA
for all exploration activities, the Canadian and Mexican governments have agreed upon certain
threshold values in the Diaro Oficial de la Federacion which, if not exceeded, make the execution of
an EIA unnecessary (GAES Consultancy, 2007). Exploration permits are valid for six years and cannot
be renewed. Exploitation permits are given for 50 years and can be renewed for a similar period of
time (GAES Consultancy, 2007). Despite the fact that an EIA is required, the Mining Law establishes
that a mining concession is granted to the first solicitor; and not to the one who proposes the best
technically and economically sustainable project. A solicitation has to contain a working plan and the
EIA. The National Institute for Ecology (INE – Instituto Nacional de Ecología) is the institute
responsible for granting environmental permits, in cooperation with the Secretary of Environment
and Natural Resources (Semarnat – Secretaría de Medio Ambiente y Recursos Naturales), and has 90
days to reply to the solicitation, a time lapse considered very short to obtain an in-depth overview of
the possible impacts of the proposed project (Estrada & Hofbauer, 2001).
The Mining Law has received a lot of criticism as it contains a few provisions that are considered
adverse. The articles 54,55,56 and 57 of the Mining Law state that it is not possible to cancel or
revoke a mining concession in case the mining company contaminates the area; only administrative
measures can be taken (Estrada & Hofbauer, 2001). Another major issue is the discrepancy between
the Mining Law and Agricultural Law. Mexico’s Mining Law considers mining to be of benefit to the
entire society. As such any kind of exploration, exploitation and beneficiation of minerals should ‘get
preference over any other types of land use’, including agriculture and housing (GAES Consultancy,
2007; Herman, 2010). However this is not in accordance with article 75 of Mexico’s Agrarian Law,
which states that “in cases where lands have been proven to be of use to the ejido population, the
common land uses in which the ejido or ejidatarios participate may be prioritized” (Herman, 2010, p.
84). The intrasystemic legal pluralism within these two laws has proven to be at the root of the
conflict in Cerro de San Pedro. An amendment in article six of the Mining Law enables land to be
alienated through ‘temporary occupancy’ (Herman, 2010), a provision that enables mining activity to
occupy land, with any other form of land use, in favour of mining activity. The land in Cerro de San
Pedro has been seized by such a Temporary Occupancy, yet this did not take away the contradictions
between the Agricultural and Mining Laws. It remains unclear which law supersedes the other and to
date, the legal battle over land ownership in the Cerro de San Pedro case continues in Mexican
courts (in chapter 3 this is elaborated in more detail).
The changes made to the Foreign Investment Law allow Mexican companies, fully owned by foreign
companies, to obtain mining concessions. Previously, foreign companies could own a maximum share
of 49 percent in mining projects; yet the modifications to the Foreign Investment Law under the
MMRP undid this and completely opened up the mining arena for foreign companies. Another
benefit for foreign companies to invest in Mexico was the division of mining profits under the Foreign
27
Investment Law. Changes to this law allowed the diversion of mining profits and dividends to foreign
locations, but without paying taxes (Herman, 2010). This means that since this law came into effect,
mining companies have been able to operate without paying a share of the revenues to the
government or local communities. This has always been subject to controversy and recent
developments on legislation for mining industries in Mexico have changed the stakes. In October of
2013 the Mexican senate approved a 7.5% tax on mining sales (Business News Americas, 2013). The
government justified the increased tax by arguing that the mining industry currently does not pay a
fair contribution and claimed that these revenues are to benefit the municipalities and local
communities directly: 70% of the revenues are supposed to go to the communities in mining areas.
Mining companies tried lobbying to undo these tax increases, but have been unsuccessful so far
(Business News Americas, 2013; Kosich, 2013). Nevertheless, the question remains how much of the
7.5% will actually be redistributed, as companies are allowed to deduct certain costs before taxes are
calculated.
2.3.4 NAFTA
Liberalisation of the market also paved the way for NAFTA, the North American Free Trade
Agreement, that Mexico joined in 1994. Through NAFTA, Direct Foreign Investment (FDI) was
stimulated greatly and it was foreseen that Mexico, as developing country, would economically
benefit most from these investments (Krueger, 1999; Ramirez, 2003). For Canadian mining
companies the NAFTA meant that Canadian mining equipment suppliers got a tariff advantage over
mining equipment imports compared to countries without trade agreements, who in general handle
a tariff of between 10-20 per cent (GAES Consultancy, 2007).
Yet NAFTA encompasses more than just a trade agreement. Policy makers realized that FDI is a
business process and does not necessarily bring about environmentally sustainable outcomes. To
avoid that companies would divert to countries with the lowest environmental standards, a side
agreement was taken up within NAFTA, aimed at protecting the environment. Moreover, a council
was formed at which complaints on environmental grounds could be voiced, the North American
Agreement Council on Environmental Cooperation (NAACEC) (Mann & von Moltke, 1999; Nogales,
2002). Even though this was applauded for by many, Mann (1999) states that ‘the scope and
interpretation of the investment protection provisions and how they related to environmental
protection by the host state’ had received too little attention during negotiation and early
implementation of NAFTA (Mann & von Moltke, 1999, p. 3). This is caused by another provision
within NAFTA that enables foreign companies to circumnavigate some of a nation’s protection
mechanisms for the environment, which has got to do with one of NAFTA’s core principles: ‘equal
treatment’. It is the intention of NAFTA that investors of different countries are treated equally and
protected from expropriation by all levels of the (host) government. In NAFTA’s chapter eleven a so-
called investor-state protection is incorporated, which gives an investor the right to challenge the
government on grounds of incompliance to the agreements made in NAFTA, in an international court
superseding national law. Nogales (2002, p. 109) about the investor-state protection mechanism:
“NAFTA’s investment provisions are covered in Chapter 11, and apply to
investments by an investor of one party in the territory of another party and with
the resolution of a dispute between a party and an investor of another party.
Under these provisions, investments and investors are protected from certain
28
types of “measures” taken by governments. The definition of “measures” is
broad – it includes all laws adopted by national, state or provincial legislatures;
regulations that implement these laws; local or municipal laws and bylaws; and
policies that affect government interaction with businesses – which means that
investors are protected from nearly all forms of government action [emphasis
added].”
Originally this protection mechanism was meant as a defensive measure to protect foreign
companies against arbitrary and unreasonable government actions, but the provision has caused
undesirable and unforeseen side effects: 1) It allows foreign companies to operate within the host
country, but in case of a dispute they can go directly to the international arbitration process and as
such bypass domestic courts, and 2) the low costs and ease with which a procedure can be started
has caused this possibility to increasingly have been used by foreign companies that wish to protect
themselves from the adoption of new laws or policies that could have a negative economic impact on
them (Mann & von Moltke, 1999). Moreover, the option of appealing at the international court
under NAFTA is only present for those companies operating under NAFTA, and not for e.g.
communities or other non-business stakeholders (Herman, 2010). The possibility to sue governments
for non-compliance with agreements made in NAFTA has, on more than one occasion, also been
used for environmental issues. For example, in 2001, the American corporation Metalclad got
awarded $16.5 million dollars by the NAFTA committee after the state of San Luis Potosí denied the
installation of a hazardous waste transfer station, which shocked both national and international
environmentalist as one of the purposes (Kass & McCarrol, 2000). MSX has threatened the Mexican
government to make use of chapter 11 of the NAFTA, in an effort to try to obtain the required
permits at the time when the process of obtaining these permits showed very difficult. According to
Warden et al. (2007), just the threat of using this provision can already cause a ‘chill-effect’ within
governments.
2.4 Water use and the aquifer in San Luis Potosí The city of San Luis Potosí and Cerro de San Pedro are located in the hydrological watershed of the
Valle de San Luis Potosí. This watershed stretches over approximately 1900 km2 and supplies about
90% of the San Luis Potosí population with drinking water. Water for industrial and agricultural
purposes is also being extracted from this aquifer (Santacruz de Leon, 2008).
When ASARCO was still operating in Cerro de San Pedro, water was being transported from a well
close-by to the village of Cerro de San Pedro. However after the exodus of ASARCO services within
the village deteriorated, as water pipes and electricity lines were stolen by robbers and never
replaced. It wasn’t until the early 1990’s, that PEMEX, the Mexican oil company, abandoned a well
perforated for exploration purposes and offered the well to the municipality of Cerro de San Pedro as
water source for its inhabitants. To date, water is still being supplied from this well. Water first flows
from the well to a pool (each village has their own storage), in which sufficient water can be stored to
provide the residents with drinking water for a few days. Residents claim that the quantity of water
provision is fine, yet they are concerned about the dust pollution from the mine (with possible traces
of heavy metals or cyanide) entering the storage pools. They claim MSX nor Interapas checks the
quality of the water once it has passed the storage pools, and state they feel forced to drink bottled
water since the mine has started operating.
29
Government-driven economic incentives, initiated in the 1940’s, and increasing population pressures
have induced the installation of deep tube wells all over Mexico, with overexploitation of many
aquifers in the country as a consequence (Hoogesteger van Dijk, 2004). Also The Valle de San Luis
Potosí aquifer is being overexploited: yearly, approximately 149.34 million m3 is being extracted from
the deep aquifer, whereas only an estimated 78.1 million m3 recharges the aquifer (Santacruz de
Leon, 2008). Flores-Márquez et al. (2011) have shown that water levels within the deep aquifer of
San Luis Potosí have dropped up to 80 meters between 1972 and 2005, as water extraction rates
transcend aquifer recharge rates. Conagua, el Colegio de San Luis and the San Luis Potosí
intermunicipal water agency Interapas have advised the municipality of San Luis Potosí to switch the
use of drinking water for residual water where possible, as such to alleviate pressure on the aquifer
(Herrera Pinedo, 2010).
As a way of mitigating aquifer overexploitation the Mexican government installed zonas de vedas7
throughout the country. The low water availability and recharge in de Valle de San Luis was the cause
for a zona de veda to be installed within this area and since 1961 the largest part of the Valle de San
Luis Potosí aquifer is subject to the veda, to which also the mine in Cerro de San Pedro belongs
(Conagua, 2004). Moreover, Conagua and Interapas are trying to mitigate water shortage by the
construction of large (interstate) dams and transferring the water to the city of San Luis Potosí, such
as dam “el Realito”, good for 31 million m3 of water per year8 (FCC Construcción, 2014). Despite
efforts to alleviate pressures on the aquifer, concern about groundwater quantity and quality
remains.
Not only the veda has restricted water extraction in the Valle de San Luis. Another decree, issued on
24th of September 1993, designates 75% of the municipality of Cerro de San Pedro as zona de
preservación de la vida silvestre (zone for the preservation of wildlife). This decree was issued a few
years before Metallica Resources came to Cerro de San Pedro and announced its interest in
exploiting the gold and silver reserves of the area (FAO, 2014a). The State Congress assigned Cerro de
San Pedro and the surrounding area a protected status due to its ecological function and importance
for watersheds. This was formalized in a State Decree which entailed that in 75% of the municipality
of Cerro de San Pedro no changes were to be made in the subsoil for a period of twenty years, the
area was not suited for industrial activity with high water consumption and the area was
acknowledged as having an important function for wildlife preservation (Gordoa, 2011; Peña &
Herrera, 2008b; Vargaz-Hernandez, 2006).
It is against this backdrop that MSX announced to have the intention to start exploiting an open pit
mine. The process of lixiviation with cyanide requires large amounts of water: in its environmental
impact assessment MSX estimated the water use to be one million m3 of water annually (an
enormous amount in an area in which water is so scarce that many families are forced to buy water
in truckloads (Estrada & Hofbauer, 2001). Daily, 16 tons of cyanide are dissolved in 32 million litres
7 Zona de veda: specific areas in which additional water use (on top of those concessions already granted) is not allowed;
or, so to speak, new water concessions are not granted anymore. This is to ensure the quantity and quality of the water,
which can be both of superficial or subsurface nature. In this way, a zona de veda is used in order to try to reach a
sustainable equilibrium in allowing human activities without deteriorating the environment (Conagua 2012). However, an
established amount of water for extraction does not guarantee a sound equilibrium is actually reached. In the Valle de San
Luis Potosí the veda refers to groundwater exploitation. 8 Data obtained through interviews with a spokesperson of the San Luis Potosí state Conagua office, and Dr. German
Santacruz, scientist in Environmental Sciences at the Colegio de San Luis, Sept-Dec 2013.
30
(0,032 million m3) of water and applied to the lixiviation area (Herrera Pinedo, 2010; Newgold Inc.,
2009). For comparison: Interapas, responsible for the drinking water supply of the municipalities of
San Luis Potosí, Soledad de Graciano Sánchez, Mexquitic and Cerro de San Pedro) has an authorized
annual extraction of 85 million m3 of water (Peña & Herrera, 2008b). The rest of the used water is
for industrial purposes: agricultural extraction is not counted within these numbers (Santacruz de
Leon, 2008). Even though in its environmental impact assessment MSX claimed it would use residual
water where possible (mainly in wetting the dirt roads, as such to reduce dust pollution), large parts
of the production process require the use of clean water which implies limited residual water use
(Newgold Inc., 2009). Hence the majority of the required water is extracted from the deep aquifer.
The high water demand of Minera San Xavier in in sharp contrast to the water scarcity that the area
is facing. Several (illegally developed) villages close to the mine have no water provision
infrastructure and are dependent on water provision by tank trucks, whilst just a few kilometres
down the road, more than a million m3 water per year is pumped up for mining purposes. These
sharp contrasts feed the anxiety over water competition, which has lead and still leads to tensions
between local communities, Minera San Xavier and the government.
31
Chapter 3. Litigating for permits Before MSX could start operating, a number of permits had to be obtained. These permits are issued
by different government levels and are the result of a complex interplay between government
institutions and other stakeholders. The process of obtaining the necessary permits got rather
complex as for some permits the approval of different government levels was required. For the
explosives permit for example, the approval of both federal, state and municipal actors is required. If
one of these actors does not approve, the permit is not valid (an overview of the different permits
and the associated institutions is given in Annex 2). The process of obtaining and validating these
permits has been ongoing since 1996 and was until the announcement of shut-down of the mining
plant still being contested in court. In this section an overview of the process of obtaining access to
the land and obtaining the Environmental and Land Use Change licences is given. These are lengthy
and complicated processes, yet essential to mention in order to understand the complexity of the
legal background of this case.
Essential to the litigation process are tree decrees that relate to Cerro de San Pedro and that have
been of importance in the litigation process. The first one is the zona de veda (18th of June 1962),
zona de monumentos (monumental zone, 6th of January 1972) and the zona de preservación de la
vida silvestre (zone for the preservation of wildlife, 24th of September 1993).
3.1 Who gets access to the land? The struggle over land rights Metallica Resources started in 1995 with exploring the suitability of the area for renewed gold and
silver extraction; in 1996 the inhabitants of Cerro de San Pedro were informed that Minera San
Xavier (MSX), the 100% owned Mexican subsidiary of Metallica Resources, had acquired mining
permits from the government and was planning to create an open pit mine in the village. Initially, the
idea was to translocate the entire villages of both Cerro de San Pedro, including its two historic
churches, and La Zapatilla, a village close by and currently located at about 300 meter from the
lixiviation area. However, Metallica Resources had not yet acquired the required lease contracts for
the land with the three concerning ejidos; in addition Cerro de San Pedro had a protected status as
‘Patrimonio Cultural’ and to move the entire village proved eventually impossible. The plans for the
open pit mine were not received with open arms, especially not in Cerro de San Pedro9 (Herman,
2010). La Zapatilla, a village in which the public opinion was more in favour of the mine, was
eventually moved to a place a few hundred meters to the south, to a ‘safer’ place. Its inhabitants sold
their land to MSX, who constructed their new houses on a location a bit further away from the
lixiviation area.
Pedro, who has a large history working in the underground mines in Cerro de San Pedro, about the
open pit mining project of MSX10: “The way in which we were used to exploiting the precious minerals
in the area was by means of tunnels, on the inside of the mountain. But never, never did I imagine
what was meant by ‘open pit mining’. When I heard the news that a company wanted to come to
Cerro de San Pedro to exploit the minerals, I said ‘that’s good, that’s good’! But when I realized which
system they were planning to use, I said ‘no, that is no good. I don’t accept it.’ That is when I became
9 Data retrieved from interviews with several inhabitants of Cerro de San Pedro and researchers from el Colegio de San Luis
Potosí, Sept-Dec 2013. 10
Quote retrieved from a video obtained from David Covarrubias, member of FAO. Video taken in June 2011.
32
involved in the opposition group. I help the group when I can. Because I did not and still do not agree
with the company exploiting the minerals in this way.”
It is after the announcement of MSX that it wanted to start the open pit mine in the area that a
number of initiatives started to oppose the arrival of the mine; first on cultural grounds (e.g.
Patronato Pro-Defensa del Patrimonio Cultural e Histórico de Cerro San Pedro, A.C.), later also on
environmental grounds (e.g. Pro San Luis Ecológico A.C., Frente Amplio Opositor, FAO).
After the arrival of MSX to Cerro de San Pedro, the process of land acquisition was put into motion
and MSX tried to arrange a lease contract for the land with the ejido of Cerro de San Pedro. In article
27 of the Mexican Constitution it is determined that only the surface of the land is owned by the title
holder (in this case the ejido); the subsoil remains in the possession of the Mexican government.
Hence a mining company, in order to be able to legally operate on a piece of land, needs both a
mining permission from the federal government and a lease/sales contract of the land with its title
holder. In the case of MSX, this meant that they had to come to a lease agreement with three ejidos:
that of Palma de la Cruz, Cuesta de Campa and Cerro de San Pedro (in this research I focus on the
ejido of Cerro de San Pedro). However, obtaining access to the land turned out not as easy as
perhaps hoped and expected by MSX. In order to understand the processes that have taken place in
acquiring ejido land in Cerro de San Pedro it is essential to go back to the beginning of the 20th
century, when the ejido of Cerro de San Pedro was formed.
In 1926, more than 125 inhabitants of Cerro de San Pedro were assigned the status ejidatario of the
ejido of Cerro de San Pedro by the Mexican government. However, due to the exodus after the
departure of ASARCO, a census concluded in 1957 that only 32 ejidatarios remained in the area. The
land, meanwhile, was still in use, though not by the rightful ejidatarios, but rather by its avecindados
(neighbours that did not possess the legal title to the land, but who worked the land under
customary right). Most of these avecindados resided in La Zapatilla. In the 1970’s a group of 30
inhabitants of La Zapatilla filed a request to represent the ejido, after noting that almost all resident
ejidatarios of Cerro de San Pedro had either left or died. They were denied the legal status as
ejidatario but filed several other requests during the 1970’s and 1980’s. None of these requests was
successful (Herman, 2010). When Metallica arrived to Cerro de San Pedro in 1995, virtually none of
the ejidatarios was present in the area and the ejido land was being worked by the avecindados.
Mexican law states that in order to rent communal land, an assembly with the ejidatarios has to be
held in which the majority has to be in favour of the rental. However this proved difficult in Cerro de
San Pedro as almost all ejidatarios had either moved or passed away. Yet MSX needed ejidatarios to
come to an agreement about occupying their land. In 1997 MSX produced a lease contract to occupy
ejido land: it had a number of residents of mainly La Zapatilla, the avecindados, sign a lease
agreement for 292 hectares, claiming they were the righteous ejidatarios. David Covarrubias,
member of FAO, about the way in which MSX went about in leasing the land: “In 1996, when the
mining company Metallica Resources started to implement the mining project in Cerro de San Pedro,
the mining company noticed that the land belonged to the ejido of Cerro de San Pedro, and that the
part of the land they wanted to rent, was communal land. This meant that there was a need to
organize an assembly: however it turned out that there were no ejidatarios present in the village, who
could sign the contract. What did the company have to do to get access to the ejido land, if there
were no ejidatarios to sign the lease contract? So what the company did was simulate an assembly,
with persons from la Zapatilla, who acted as if they were the ejidatarios. These persons signed the
33
lease contract with MSX and thus rented the land of the ejido of Cerro de San Pedro to MSX. A false
act.” [Interview with David Covarrubias, member of FAO, 16th of October 2013].
Opponents of MSX realized that the lease contract was not signed by the rightful ejidatarios and
started a search for the original ejidatarios (or their heirs), who had left the town after ASARCO had
abandoned operations in 1948. They filed a court case against the false lease agreement, claiming it
was void and in March 2000 the court ruled that the ejidatarios who had signed the lease were
indeed unrighteous to do so. Despite the court ruling that the lease agreement was spurious, MSX
continued its activities on ejido land. In February of 2004 MSX announced to start construction of the
mine, still under the false lease agreement (Herman, 2010).
In that same year, the United Agrarian Tribunal of the 25th District (Tribunal Unitario Agario del
Vigésimo Quinto Distrito) maintained that the rental agreement was void as the signatories did not
possess the right to rule over the land. MSX claimed that this verdict did not rule that MSX had to
vacate the ejido land and the company thus maintained its activities on the Cerro de San Pedro ejido
land. Later in 2004, in the midst of these lawsuits, MSX announced it had filed a request at the
Secretary of Economy to obtain a ‘temporary occupancy agreement’, as such to be able to access the
land without the need for a lease contract with the land owner (ocupación temporal). The temporary
occupancy is enabled by provisions in the Mining Law, stating that mining is the preferential use of
the land over any other type of land use. This however is not mentioned in the Agrarian Law, under
which the ejido law is located, and does thus represent an inconsistency in the Mexican law system
and has proven to be at the base of the still ongoing litigation process over permits and land access
(see chapter 5). In June 2005 the Secretary of Economy via the Federal Mining Bureau (Dirección
General de Minas) granted MSX the Temporay Occupancy Agreement, valid from 2005 until 2037,
with the objective of realizing mining activity. The Temporary Occupancy Agreement is valid for 203.2
hectares of the Cerro de San Pedro ejido land, 135.2 hectares of the ejido of Palma de La Cruz and
42.9 hectares of Cuesta de Campa (Herman, 2010; Newgold Inc., 2009).
Unrest in the municipality
Meanwhile MSX and project opponents argued in court over access to the land, concern about the
realization of the mine amongst inhabitants of Cerro de San Pedro grew and opposition increased.
Baltazar Loredo, the mayor of the municipality of Cerro de San Pedro, was openly opposing the mine
and had started an investigation to the illegal sales of housing plots in Cerro de San Pedro to MSX. On
March 20 1998, one day after publishing an open letter in which he opposed against the mine,
Baltazar Loredo was found dead with a bullet in his head. According to the authorities his death was
suicide, but sceptics claimed that Baltazar was left-handed, while the bullet went through the right
side of his head (Peña & Herrera, 2008a; Peña & Herrera, 2008b; Reygadas & Reyna Jiménez, 2008;
Vargaz-Hernandez, 2006).
3.2 The Environmental Licence and the Land Use Change Licence In February 1999, after MSX had conducted its preliminary investigation and finished its
Environmental Impact Assessment, the INE and Semarnat awarded the Land Use Change Licence to
MSX. The permit authorized a change in land use for 373.39 hectares, but was contingent upon a set
of a 100 conditions, set by investigators from the Universidad Autónoma de San Luis Potosí (although
this research, according to Vargaz-Hernandez (2006), was not considered to have been conducted in
a serious and professional manner, but rather seen as an instrument to pursue MSX’s interests). MSX
34
accepted these 100 conditions without bargaining and as such received the environmental permit.
One of the 100 conditions which really stands out is no. 12; 100% of the population of Cerro de San
Pedro has to agree on the operation of an open pit mine in their area. This point would later turn out
to develop as a breaking point over the validity of the permit, as many people claimed this condition
was not met by MSX (Gordoa, 2011; Newgold Inc., 2009).
In February 2000, project opponent Pro Ecológico San Luis claimed that the mining project of MSX
violated the Decree of 1993 and several of Mexico’s environmental laws, and on these grounds filed
a case to suspend the environmental permit through the Supreme Court of the Fiscal and
Administrative Federal Tribunal. In March 2000 this court nullified the environmental agreement in
response to the arguments submitted by Pro Ecologico San Luis. Following this nullification Pro
Ecológico filed a request for Constitutional Protection (“amparo”) in January of 2004 and in August of
that same year MSX announces that their EIA is successfully challenged by the amparo set up by
project opponents. However, MSX announced it would not stop operating in the area until the
federal authorities officially notified them about the nullification of the environmental permit.
Moreover MSX declared that it was going to ‘actively and aggressively’ challenge the sentence
(Herman, 2010; Peña & Herrera, 2008a). It is around this time that MSX announced to start with site
preparation (despite the fact that officially the environmental permit was not granted).
Six years after Baltazar Loredo’s death, during elections for the municipal presidency in 2003, Óscar
Loredo (son of the murdered mayor Baltazar Loredo) was elected as new president of the
municipality. Óscar Loredo opposed the development of the mine in Cerro de San Pedro, and when
MSX announced it would start construction in 2004, Loredo declared he would not ratify the required
municipal permits, as such refraining MSX from operating in the area. Seven months later, however,
Loredo announced in an extraordinary meeting that he had changed his mind and decided he would
ratify municipal permits. He claimed he was being put under great pressures from both the company,
state and even the federal president (Vicente Fox) and stated he could no longer stand the pressures.
Allegedly he claimed he felt he had no choice and that his life was at risk. He added that his personal
fears had made him change his mind about the matter. When questioned by one of the council
members, Óscar Loredo allegedly answered: “My life does not matter to you?” (Herman, 2010;
Reygadas & Reyna Jiménez, 2008). Municipal permits were ratified and MSX could continue
operating.
In October of 2005 the most significant court of Mexico, The Superior Chamber of the Federal Fiscal
and Administrative Federal Tribunal (TFJFA - Sala Superior del Tribunal Federal de Justicia Fiscal y
Administrativa), also nullified the environmental permit, posing an unchallengeable sentence, stating
it violated the 1993 State Decree. As a consequence, also the Land Use Change Licence was nullified.
The TFJFA ordered Semarnat to issue a new environmental and Land Use Change permit. New
Environmental and Land Use Change permits were issued in April 2006. According to project
opponents this is inconsistent with previous resolutions and they filed a complaint against the TFJFA
for allowing a new permit to be issued. The TFJFA, however, claimed that the Decree of 1993 speaks
about ‘industrial activity’, and since mining can be considered a primary activity, it is not subject to
the 1993 Decree. Disagreeing, project opponents took this decision to another court and in August of
2006, the Third District Court suspended the Land Use Permit once again. Despite a lack of the land
use change permit MSX continued preparing the mining site (Herman, 2010).
35
In April of 2006, Semarnat re-authorized MSX’s EIA and awarded a new environmental permit. In
January of 2007 Pro Ecológico decided to file a complaint against the Mexican government at
NAFTA’s Commission for Environmental Cooperation (NAFTA CEC) for violating court ruling by
authorizing the Cerro the San Pedro Mine, on grounds of an invalid environmental permit. In 2007
however, the NAFTA CEC decided that the issues related to the environmental permit were to be
settled within the legal spheres of Mexico, and did not require further investigation from their side
(Herman, 2010). The environmental permit remained valid but did not represent an authorization for
start of construction without the other required permits.
Whilst the issuing of permits remained caught in a vicious circle and no clear decisions were taken,
MSX opted for another route in trying to force obtaining the permits. Being trade partners under
NAFTA, Mexico had agreed upon the ‘equal treatment’ principle on which NAFTA is based. Chapter
11 of NAFTA allows foreign companies to file a complaint under the NAFTA commission against a
host government, in case the company feels that the host government is obstructing the possibilities
for economic development of their business. In several previous cases this has resulted in heavy
penalties for the host government, and just a few years before in 2001, NAFTA had imposed a $16.5
million dollar penalty on the state of San Luis Potosí for obstructing the development of a chemical
waste transfer station in the city of San Luis Potosí. Having just recently experienced this turmoil, the
state of San Luis now faced yet another such prospect: in October of 2006 MSX threatened to use
NAFTA’s chapter 11 if the Mexican government did not allow MSX to move operations forward.
It is around this time that FAO organized a referendum in which they asked whether the respondent
agreed with the MSX’s presence and operation in Cerro de San Pedro. Of 20.000 respondents,
19,5000 said ‘no’ to the project. In response MSX held another poll, conducted by Epiica and
published in 2007, in which 55 percent of the respondents agreed with the project, 31.3 percent was
against and 13.7 percent was undecided (Leahy, 2008). Yet, FAO member Martinez Ramos11 explains,
the referendum outcomes did not change the litigation process or invoke governmental action.
Despite delay due to large opposition and legal battles, MSX started exploitation of the mine in 2007.
MSX claimed to have obtained the required permits but was still involved in several court cases
fighting their presence. In January 2007, the first truckload of debris was brought to the leach area.
Despite the fact that MSX had started exploitation, legal battles continue to be fought. In October
2008 the State level Land Use Change licence was revoked after the municipality of Cerro de San
Pedro confirmed to yet another court that they had not granted a municipal Land Use Change
licence. MSX continued to operate.
In 2009, TFJFA ordered Semarnat to revoke the environmental permit, based on earlier court rulings.
On November 13, 2009, Semarnat officially informed MSX that their environmental permit had been
revoked. Four days later local officals from the Federal Attorney on Environmental Protection
(PROFEPA - Procuraría Federal de Protección al Ambiente) visited the mine to enforce the revocation
of the permit (La Jornada, 2009). The mine was shut down for an undecided time; yet three weeks
later MSX announced it had been granted a temporary injunction and as such could resume
11
Data obtained during interviews with Mario Martinez Ramos, Sept-Dec 2013, San Luis Potosí.
36
operation while the court case was pending. The temporary injunction was accepted by the San Luis
PROFEPA office and MSX resumed operation (Herman, 2010).
Between 2009 and 2014, the legal battles remained ongoing, meanwhile MSX continued to operate.
Project opponents won several court cases, yet MSX was not stopped. Different courts deny liability
and refer to other courts, according to Mario Martinez Ramos to “gain time for MSX to continue
operating meanwhile”12.
In June 2010 the Ninth Collegiate Tribunal (Noveno Tribunal Colegiado) determined that MSX would
not get the amparo it filed in December 2009, and that the Environmental and Land Use Change
permits were not valid. MSX appealed against this resolution and the very same court grants MSX in
November of 2010 the amparo after all. This entailed that the very objections that Pro Ecológico has
made against the Environmental and Land Use Change Permit in 1999 were considered unfounded,
but the objections were not considered unfounded in an absolute manner. The Ninth Collegiate
Tribunal ordered INE to issue another resolution in which the request for review of the
Environmental and Land Use Change permits is considered once again. INE had twenty days to do so
(Herman, 2010).
One year later in November, however, INE declared she is not able to follow up to the sentence
imposed by the Ninth Collegiate Tribunal in November 2010, as they are not authorized to resolve
resolutions against one of their own administrative units. They claimed Semarnat should take care of
reviewing the environmental and Land Use Change permits (Semarnat and INE belonged to the same
institution at the beginning of the litigation process, but were separated into two different
institutions later). Three months later, in January of 2012, Semarnat requested clarification on
whether it is Semarnat or INE who is responsible for resolving the issue on whether or not the
objections against the Environmental and Land Use Change permit are valid.
In March of 2012 it was determined that Semarnat was the one in charge of resolving the request for
a review of the arguments on which the Environmental and Land Use Change permits are provided.
Part of this review consist of an analysis of the authorized works, chemical and possibly
contaminating materials and the characteristics of the flora, fauna and soil characteristics. By
performing this analysis the Environmental and Land Use Change permits are granted; yet no
consequences are linked to possible outcomes of the analysis. MSX’s response concerning the most
recent resolution in favour of the mining company in March 2012 (Newgold Inc., 2012b, p. 30): “The
ejido of Cerro de San Pedro filed a petition to agricultural authorities on the temporary occupancy
agreement on the use of topsoil by the company. Finally, in November 2012 a new comprehensive
contract with the ejido was signed, thanks to a successful negotiation that completely closed the
dispute.” Martinez Ramos about the litigation process so far: “The strategy of the juridical
institutions is obvious. It is designed on the basis of stimulating an indeterminable cycle of resources
and protections [amparos], in this way avoiding the application of the final resolution given in 2004,
in which the project of MSX in Cerro de San Pedro is nullified.”12
12
Quote taken during interviews with Mario Martinez Ramos, Sept-Dec 2013.
37
On March 19, 2014, MSX published the news that they intend to shut down the mine within the
coming six months (Momento Noticias, 2014). However, the opposition leader of FAO, Martinez
Ramos, estimated it is highly unlikely MSX will in fact stop operating within six months. The
contradicting news from different sources make it difficult to estimate the next steps of MSX, and at
the moment of writing this thesis, no further information on the development of MSX in Cerro de San
Pedro was available yet. Dependent on the actions MSX takes, the litigation process will most likely
continue in the future.
3.3 The water use permit In Mexico, water use is arranged with permits. It is not allowed to perforate a well without having a
permit for extracting water. Mexico’s National Water Commission Conagua (Comision Nacional de
Agua) is the governmental body in charge for granting water use permits. Obtaining water use
permits is a complicated process. Water permits are granted by several layers of the government:
both the federal department, state department and, in San Luis Potosí, the intermunicipal water
agency Interapas are involved (this last one as they are managing the majority of San Luis Potosí’s
water permits). Minera San Xavier has obtained concessions for the use of 1 million m3 per year,
whilst drinking water is a considered a scarce commodity in the Valle de San Luis Potosí, to which
Cerro de San Pedro belongs. What are the consequences for the distribution of water rights and the
use of water in practice for other stakeholders?
Due to the fact that the mine in Cerro de San Pedro was located in a zona de veda, MSX could not
obtain new water concessions for extracting the one million m3 annually. Instead, MSX bought 12
already existing but out-of-use permits from third parties and created a new well close to the mining
area. This is allowed, yet the wells previously used under the concessions have to be out of use
(Herrera Pinedo, 2010). By the end of 1998 MSX obtained the required permits and was finalizing the
perforation of a well close to the mine (Reyna Jiménez, 2009). A large part of the opposition against
the open pit mine in Cerro de San Pedro is based on the arguments that involve both the excessive
use of water in an area in which water is a scarce commodity, not in line with the 1993 Decree, and
the risks that mining activity poses for contamination of the aquifer (Peña & Herrera, 2008a; Peña &
Herrera, 2008b). Since the aquifer of the Valle de San Luis Potosí provides water to more than 90% of
the population of San Luis Potosí (with over one million inhabitants), it is of essential importance to
avoid contamination.
Critics to the MSX project mention that the use of cyanide poses a serious environmental hazard.
Cyanide is the number one used product in the processing of gold around the world; yet the
substance is labelled extremely toxic. In small quantities cyanide can cause irritation of the skin, the
eyes and the respiratory system. Low quantities of cyanide in the body can invoke a comatose state,
seizures and irreversible damage to the brain. In (slightly) larger quantities cyanide can cause death
through suffocation in both humans and animals as it blocks the transport of oxygen on a cellular
level. Aquatic life is especially vulnerable: research has shown that fish are killed by cyanide
concentrations up to 1000x smaller than the concentrations lethal to mammals and birds.
Unfortunately, accidents in mining projects are not rare and can cause irreversible damage to the
environment (Santacruz de Leon, 2008). Moreover, opponents claim that the location of the
lixiviation area, in a zone designated for aquifer recharge according to a Decree issued in 1993,
besides being illegal, poses an extra threat for contamination of the aquifer.
38
The provision of drinking water for the inhabitants of Cerro de San Pedro and La Zapatilla is task of
the intermunicipal water provision company Interapas. Interapas has concessions for 85 million m3 of
water, which they take from the deep aquifer of the Valle de San Luis Potosí. Interapas is responsible
for the purification of the water and transport of the water to the end users. Interapas provides
water to both Cerro de San Pedro, La Zapatilla, and a number of other villages in the area. Each
village has a water tank with sufficient storage for a few days. The tanks are being refilled every few
days; a rotation scheme determines which village receives water on which day. According to
inhabitants of Cerro de San Pedro and La Zapatilla, water supply is relatively stable. However, FAO
activists claim that MSX is stealing water from their pipelines, to use in their production process.
Nonetheless, this is hard to prove, and I did not encounter any evidence for it. It does show the
sensitivity of water use, and to whom it is designated, and the deep distrust that exists against the
mining company.
Even though direct drinking water supply to Cerro de San Pedro and La Zapatilla was not threatened
by the arrival of MSX, concerns about the sustainability of the water extraction by MSX remain. Since
water is being extracted from the deep aquifer, the direct effects of water extraction are not visible
in the landscape. Yet FAO, one of the main opponents of MSX, voiced its concerns about the water
extraction by MSX, claiming that water security is being jeopardized by the mining activity of MSX
and states that the government should not approve the extraction of such a scarce resource for
these purposes. In addition, FAO stated it doubts whether the actual extraction would equal one
million m3 per year as potential evaporation rates in the area are very high and in the corruptive
system, it is unclear if and how MSX is being controlled. Moreover, FAO claims that the approval of
one million m3 of a ‘scarce resource’ for mining purposes shows that the so-called ‘scarcity’ is not an
environmental condition, but rather the result of priorities that the government assigns to certain
uses. They claim that as such, the government decides that for some uses water is ‘abundant’,
whereas for others it is ‘scarce’ (Peña & Herrera, 2008b). Scarcity in this sense is a social construction
and political phenomenon rather than a natural state of the environment.
Other opinions are also voiced. Some scientist, such as Castro Larragoitia13, state that there are many
high water demanding industries active in San Luis Potosí, and states that MSX is an industry ‘just like
any other here in San Luis Potosí’. Hence, he does not see why the ‘regular’ industry does not bring
about the discussion about water use, yet mining does. Even though it makes sense to consider
water scarcity a problem of the entire society and not only one industry or company, this argument
leaves out the risks for possible contamination of the aquifer due to the mining activity, and also
does not touch upon the sustainability of high water extraction rates, whether or not it is for a
legitimate cause.
A Conagua official of the SLP state office stated that there is a lack of research on the status of the
aquifer14. This means that they don’t know in what rate the aquifer is being recharged, and thus it is
difficult to predict for how many more years to come they will be ensured of water supply from the
13 Data obtained during an interview with Javier Castro Larragoitia, researcher at the Universidad Autónoma de San Luis
Potosí, geologist and specialized in the effects of mining on the environment. November 2013.
14 Data obtained during an interview with a spokesperson of the San Luis Potosí state Conagua office, November 2013, San
Luis Potosí.
39
deep aquifer. The veda is installed to prevent uncontrolled and unlimited water extraction from the
deep aquifer and as such to try to obtain a sustainable equilibrium in allowing human activities
without deteriorating the environment (Conagua, 2012a). MSX obtained out-of-use permits from
third parties and legally this is allowed. However the question remains whether Conagua is fulfilling
the objective of the veda by allowing a company as MSX to use such an enormous quantity of water
from an aquifer already under pressure. Moreover, the 1993 Decree explicitly states that the
installation of industries that require great amounts of water is undesirable within the area, giving
preference to industries that do not require large amounts of water and that do not contaminate
(Vargaz-Hernandez, 2006).
40
Chapter 4. Livelihood practices in a changing environment In the previous chapter we saw the litigation process, and how, after years of struggle, mining activity
nonetheless took place and still does, to date. Despite the fact that there is large opposition against
mining activity, this does not mean that this opposition also comes from the villages surrounding the
mine. So how is the presence of perceived by the inhabitants of Cerro de San Pedro and La Zapatilla?
In addition, the mining operation in Cerro de San Pedro did not only impact the environment, flora
and fauna, but also caused changes in the daily land and water management practices of local
inhabitants. In this chapter I discuss how people have adapted land and water management practices
in this changing environment.
4.1 Changing daily land and water management practices One of the research questions was how land and water management practices have changed in Cerro
de San Pedro due to the arrival of MSX. In order to explain this, it is important to know how land and
water was managed just before the mine arrived to Cerro de San Pedro.
Land
The most obvious effect of the mining activity on the surroundings is the profound change of the
surface claimed by MSX. For the operation of the mine, 373 ha of land is occupied, divided over an
open pit, two waste dumps and a lixiviation area (fig. 12). Large opposition against the change in land
use arose, led by environmental opposition groups, who worried that the flora and fauna in the area
would be severely impacted by the changes in habitat. The landscape has completely changed in the
eight years of operation of the open pit mine. The hill of Saint Peter (‘el Cerro de San Pedro’) was
completely excavated and now is a ‘hole’; two new hills emerged to the north and south of the
former Hill of Saint Peter (fig. 1, 7,8, and 9 give a good impression of the change in landscape caused
by the mining activity).
The amount of active farmers in the area has reduced significantly since ASARCO left Cerro de San
Pedro in 1948. According to Martínez Chavez et al. (2010) it was common to keep animals (mainly
cows, goats and sheep) for extensive grazing until 1960. Fields were cultivated, the most prevalent
crops were an intercropping of maize, beans and zucchini (milpa). The population economically
active in the agricultural sector, however, has reduced from 79.6 to 22.4 percent between 1960 and
2000 (Martínez Chaves et al., 2010). This can be explained by the limited availability of water, the low
productivity of the land and changes in the Mexican subsidy system for smallholder farmers, making
farming for smallholder farmers less and less profitable (Martínez Chaves et al., 2010). I have found
that in 2013, during my field work in the municipality of Cerro de San Pedro, agriculture is still
present though in a very extensive manner, and with very few farmers (+/- 10) still cultivating their
land.
MSX tries to balance the negative environmental effects by reforesting parts of the municipality with
native tree species: this is required by Semarnat, who would only give the required environmental
permit if a number of activities were executed by MSX, amongst which the planting of trees 15.
Historically, Cerro de San Pedro has been a densely forested area but due to previous mining activity
15
Data retrieved from an interview with a Semarnat official, San Luis Potosí department, November 2013.
41
the area has been largely deforested. In 2013, MSX had reforested 220 ha, forest fires have burned
an additional 150 ha that had also been replanted. For 2015, MSX claims to aim to have planted a
total of 370 ha with native tree species. Replanting activities provide a job opportunity to about 20
inhabitants of the municipality.
In order to find out what changes in land use have taken place over the years, an analysis of aerial
photos was done. These photos, originating in 1969 (Annex 3), were compared with current Google
Earth images. Special attention was paid to agricultural fields, and whether changes in the number of
agricultural fields could be distinguished. From the aerial photos, maps (annex 4) and interviews it
became clear that the majority of the agricultural fields belonging to Cerro de San Pedro’s ejidatarios
were located in Montecaldera, a village to the East of Cerro de San Pedro, and other fields to the
West of Cerro de San Pedro. Hardly any agricultural fields were distinguished close to Cerro de San
Pedro. This was confirmed during interviews by some of the inhabitants of Cerro de San Pedro, who
explained that the majority of the fields they used to cultivate were located in Montecaldera. The
quality of the land in Montecaldera was better and more suited for cultivation of milpa. Also, the
ejidatarios had their own private plots for cultivation that were located towards Montecaldera.
The comparison of the aerial photos with the current Google Earth images did not reveal many
changes in the number of agricultural fields over the years. However from interviews and
observation it has become clear that many of the fields previously cultivated, are nowadays left
fallow: only a small fraction of the land is still cultivated. Interviewees indicated a number of reasons
for the decline in agricultural activity in Cerro de San Pedro:
1) The unpredictable climate
Interviewees indicated that the rainfall patterns were not as predictable as previously, and
after having had a few years of drought, they did not trust the weather sufficiently to try to
cultivate the land again.
2) The urbanization and changing lifestyles of inhabitants
Many people have left Cerro de San Pedro in search of a job elsewhere, especially the
younger generation (Martínez Chaves et al., 2010). These people are no longer involved in
agriculture; the youngsters still present in the area are no longer active in the agricultural
sector, and prefer to be employed in other sectors. Moreover, currently MSX offers job
positions for many inhabitants of Cerro de San Pedro and La Zapatilla, and has reduced the
need for agriculture as a source of income16.
3) Changes in subsidy patterns of the Mexican government
After the 1960s (and ongoing) the Mexican government changed subsidies and focused for a
large part on the large scale farmers for agricultural subsidies: smallholder farmers were
aided under a social development program, rather than being considered ‘real’
agriculturalists (Stoltenborg, 2014). After the subsidy patterns changed, many smallholder
farmers abandoned cultivating, and land was often taken over by larger landowners, who
could still count on the subsidies (Wilder, 2010). An indication of this is the increase in
migration to the USA (where immigrants work on American farms) and the subsequent
increase in import of agricultural products (Stoltenborg, 2014).
16
Data retrieved from interviews with inhabitants of Cerro de San Pedro and La Zapatilla and from observation during
fieldwork, from Sept-Dec 2013.
42
‘Since MSX has started operating, my milpa
close to the lixiviation area won’t grow that
well anymore. If you take a close look, you
can see that the plants are covered in a layer
of dust most of the days. How can a plant
grow like that? I have other fields with milpa,
further away from the mining area, where
the plants grow a lot better. It has rained
quite a lot this year, yet the maize close to
the lixiviation area hardly gives any yield. So
it cannot be because of the drought that it
won’t grow.’
Figure 13. Cultivation of milpa. On the background the
lixiviation area. Photography: Jesse Samaniego Leyva.
The decline in participation in agriculture thus does not only seem to be due to the presence of MSX:
also the present socio-economic circumstances make agriculture difficult. However, one clear
consequence of the arrival of MSX is the land management of inhabitants of La Zapatilla. The
majority of the inhabitants of La Zapatilla agreed with the relocation of the village by the mining
company, and many have sold their land to MSX. Currently the lixiviation area is located on top of
their land. Gordoa (2011) explains how one of the inhabitants of La Zapatilla stated that they are not
that much involved in agriculture anymore since the best fields were sold to MSX, on top of which
currently the MSX offices are located (Gordoa, 2011). Another inhabitant explained that when they
moved to the new La Zapatilla, the majority of the people sold their land and their animals:
‘Nowadays, life here is more urban-style: we no longer live of the land’.
Another consequence of the mining operation is the dust pollution that it causes. Inhabitants and
farmers close to the mine complain that the enormous amounts of dust that are emitted into the air
are irritating the respiratory system and possibly contain toxic elements (Gordoa 2011). Moreover,
the dust from the blasting of explosives and the lixiviation area settles on the plants, inhibiting their
growth. Many inhabitants of Cerro de San Pedro and La Zapatilla complained about the dust on their
plants and trees, inhibiting plant growth. A farmer from la Zapatilla about his milpa cultivation (fig.
13):
Water
When ASARCO was still operating in Cerro de San Pedro, water was being transported from a well
close-by to the village of Cerro de San Pedro. However, after the majority of Cerro de San Pedro’s
inhabitants left when ASARCO abandoned operation, services within the village deteriorated, as
water pipes and electricity lines were stolen by robbers and never replaced. It was until the early
1990s that PEMEX, the Mexican oil company, abandoned a well perforated for exploration purposes
and offered the well to the municipality of Cerro de San Pedro as water source for its inhabitants. To
date, water is still being supplied from this well. Water first flows from the well to a pool (each village
has their own storage pool), in which sufficient water can be stored to provide the residents with
drinking water for a few days. Next, the water from this pool is transported to the houses. Residents
claim that the quantity of water provision is fine; they are more concerned about the dust pollution
from the mine (with possible traces of heavy metals or cyanide) entering the storage pools, that are
not completely closed off. They claim that MSX nor Interapas checks the quality of the water once it
43
Figure 14. A drinking water pond for the cattle in front
of the lixiviation area. Photography: Jesse Samaniego
Leyva.
has passed the storage pools. Concerned inhabitants of Cerro de San Pedro claim they have switched
to drinking bottled water due to a reduction in water quality17. However the switch to bottled water
is a trend that can be seen throughout the entire country (Erickson 2012), and this has several other
causes. Moreover, the decline in drinking water quality could also be due to the overexploitation of
the aquifer that is taking place. However it is beyond the scope of this research to investigate the
possible causes of a switch to bottled water and thus it is impossible to point out a link between the
consumption of bottled water and the presence of MSX. The only link that can be laid in this sense is
the explicit mention of the inhabitants that they felt forced to switch to bottled water since the
arrival of MSX.
The harsh conditions of the land have forced the local farmers to be creative in cultivating the land
and keeping animals. A few inhabitants pointed out that rainfall had been very unreliable in the last
decades; many inhabitants have abandoned cultivating their fields. The number of farmers in the
area has reduced greatly, and those still active have adapted themselves to cope with the scarce
water resources. For example, one of the farmers left in Cerro de San Pedro, who has cattle and
cultivates milpa, has connected a tap to the water pipe that runs close to his land, and in this way has
been able to water his cows in times of drought.
For management of surface water the link with mining activity is more easily made. The changes in
landscape have impacted the run of some of the rivers and ponds in the area. One of the seasonal
rivers running through Cerro de San Pedro is now blocked off by the waste dump of the mine, and is
no longer able to fill up a dam located close to the town’s school2. Inhabitants of La Zapatilla
explained how the construction of the lixiviation area has influenced water management in their
village. Before drinking water supply was realized
in La Zapatilla in the 1990s, water for both drinking
purposes and for cattle was collected from a
number of ponds that were located close to La
Zapatilla. However when the land was sold to MSX
and the lixiviation area was installed, these ponds
disappeared under the lixiviation area and
nowadays no longer exist. Some of the ponds that
still exist are used for watering the cattle. However
concern exists over the quality of this water as
these ponds are located just a few hundred meters
from the lixiviation area (fig. 14), to which large
amounts of cyanide are being applied daily.
The question to which extent the changes in water management were caused by MSX, however,
remains. Due to the fact that drinking water was provided by pipelines before MSX arrived to Cerro
de San Pedro, it is difficult to estimate whether drinking water provision has altered due to the
presence of MSX. Drinking water was already provided before MSX came and still is being provided
by means of the private well that provides water to a number of villages in the area. Moreover,
interviewees did not complain over the quantity of the water that was provided, despite a growth in
numbers of inhabitants in La Zapatilla since MSX started operation. Allegedly the quality of drinking
17
Data retrieved from interviews with inhabitants from Cerro de San Pedro, Sept-Dec 2013.
44
water did deteriorate, and has caused local inhabitants to switch to bottled water as a drinking water
source. This has put a heavy burden on living expenses (with the price of bottled water at US$ 0.068
per litre being 200 times higher than the 2004 price of tap water at US$0.00032 per litre), especially
for those who have a low income (Erickson, 2012).
Gordoa (2011: p.12) explains that the socio-economic circumstances of the local inhabitants make
them accept the negative impact of the mine on their environment: ‘... the lack of alternative labour
possibilities and the contradictive information makes them [the local inhabitants] bear the impacts
with resignation, or with hope for a better future’.
4.2 Life histories of two local inhabitants In order to sketch how the arrival of MSX was perceived by local inhabitants, the life histories of two
inhabitants are elaborated in this chapter. Here I discuss two persons: Don José Antonio García
Morales and Doña Maria Guadalupe Moreno Sanchez18. When MSX arrived, Don José was in favour
of the mining company and sold his land to MSX; Doña Maria has always been against the mining
company. These two life histories portrait their story and give a clear insight into what it means to be
living next to an open pit mine.
Don José Antonio García Morales
Don José Antonio García Morales, previously resident of La Zapatilla Antigua and currently residing in
La Zapatilla (nueva) was born in 1960, eleven years after the closure of ASARCO. José was born and
raised in La Zapatilla, and has mainly lived of agriculture and mining activity. He now has a family of
his own, a wife and children, and works for MSX. I interviewed him about his life, about the ways in
which he perceives MSX influences their lives, and his perspective on the future.
José tells me about his childhood: “My childhood was one surrounded by work. My father passed
away when I was five years old and we lived with my mother’s parents, in their house. It was an
enormous house in which we lived with our grandparents, their four children and all of the
grandchildren. You can imagine that the house was very full! Our family was very poor and my father
passed away very early, so we (the children) had to work as well in order to have enough food. Even
though we were poor, the ethos was good and our family bond was very strong.
My grandparents used to work for ASARCO, when the company was still operating in Cerro de San
Pedro. However when the company left, the only source of work in the area was also gone. My
grandparents sought other sources of work in the area and dedicated to agriculture to make a living.
My grandmother used to take out the honey from the beehives to sell them in San Luis Potosí, and
fabricated fibre from lechuguitas [a type of cactus], that could be used to make rope and bags.
I have been working my entire life. I couldn’t go to school since there wasn’t any money; all kids had
to help in order to make a living. Part of the work we (the boys) had to do was taking care of the
land. We cultivated approximately 19 hectares with milpa, a mixture of beans, maize and calabash.
Moreover we had a lot of animals: over a hundred cows, goats, sheep, chickens, pigs, and so on. In
these days, the people used to dedicate themselves more to agriculture than nowadays. Almost all
families used to cultivate their land; our land used to be our main source of food.
18
For privacy reasons, the names used in these life histories are not real.
45
One of my first real ‘jobs’ was sowing maize for a man living in town. The problem was that everyone
in our village was poor: no one had money, so it was not easy to find work that paid well. I can still
remember that in these days we would work the entire day for a single peso. When I was seventeen
years old I got a job within one of the small artesian mines operating here. I earned 30 pesos daily,
which was very little for such hard work, which was dangerous and had long days. We used to wash
the gold in our own gardens: long before MSX came here, we were working with cyanide.
Nevertheless, this was on a very small scale and currently, MSX is working with such large quantities
of cyanide that we are worried for our health.
Up until when I was thirty years old, our town did not have any services: no streaming water, no
light, no electricity. We used to take water from the ponds that were in the area, since there was no
other water source around. Also the animals had to drink from these ponds! There were three, of
which today still one exists. The others were located on the land which is now property of MSX,
under the lixiviation area. In the 1990s our town was finally connected with water services. I myself
helped with the construction of the pool which was used for water storage. In Soledad Graciano, our
neighbouring municipality, PEMEX [Mexican state owned oil company] had perforated a well in
search for oil. When it turned out that there were no oil reserves in the ground, PEMEX left the well
to the Cerro de San Pedro municipality since they knew that we did not have a well. The well was
located in Soledad de Graciano, but the municipality bought the land in which the well was located
from Soledad and that’s how we got drinking water supply. This well still provides the water for our
village, as well as for a few other communities. Nowadays, no one uses the water from the ponds
anymore. We don’t think it’s safe (especially with the lixiviation area located so close by) and on top
of that, there are other sources of clean water available. The animals, however, still drink from these
wells.
When I was 29 years old, I married my wife. We had known each other for many years as she lived in
a village close to mine. Getting married was a complete change in my life, and for the better. My wife
helps me out a lot! The biggest change perhaps is that we now have a family, and one worries a lot
about his family and his life. Now I have responsibilities! That was and still is sometimes really hard,
as without MSX, work is scarce in La Zapatilla. This was for many inhabitants of La Zapatilla Antigua
reason to leave the town, in search of work in other places. However, we have always stayed here.
This is where I was born, this is my land. I have always cultivated my fields, taken care of my animals.
Moreover I worked in the small artisan mines in order to make a living. Nevertheless, life was not
easy. We are struggling to make a living.
In 1996 Minera San Xavier (back then called Metallic Resources), came. They started going by our
houses and told us that they were planning to start a mine here. In order to realise this, they wanted
to buy our land. The mining company was planning to locate the lixiviation area very close to our old
village and they told us that for safety reasons they wanted to relocate our village to a ‘safer’ place.
In return we would get new houses with double the amount of land that we had before, and all the
paperwork done. They promised us that the mine would bring us a lot of benefits: job positions for
everyone living in the village, a medical station, scholarships for our kids, and so on. To me this
sounded like a great opportunity and we agreed with the plans. Almost all inhabitants of La Zapatilla
were in favour and in the year 2000 we moved to our new houses, about 300 meter to the south of
46
where we were first living. Me and my brothers sold about 19 hectares of our land, that previously
we used to cultivate, to MSX. I imagined our life would be much better with MSX. I wanted a better
future for my children, I wanted to give them the opportunity to study. I never had the chance to
study and I didn’t want the same for my children.
So since the very beginning I have supported the arrival of MSX. Without any job opportunities here
in La Zapatilla, life is very difficult. I am in favour of the mine out of necessity: I wanted a job
opportunity for myself, my family and my village, and MSX was the only option we had. I am not in
favour of the mine, but in favour of a source of work. We were all living in poverty and I expected the
situation to improve with the arrival of MSX. Of course I don’t like the total change of our
environment, neither the contamination that mining activity brings about. Yet in MSX I saw the only
way out of our poverty.
So in 2000 we moved to La Zapatilla Nueva. Here we have a house which I enlarged throughout time.
We have all services we need: water, electricity, a school, a church. I work for MSX, already for about
15 years. The pay is very well, as are the other provisions. They provide us with an insurance, medical
service, etc. Two of my children also work for the mine.
However, nowadays I doubt whether I should have been so positive about MSX in the beginning.
Back then, I was one of the first to be in favour of the mine, and I pursued many of my neighbours. I
really thought that MSX would give us a better life, yet did I know that MSX would not live up to all
those promises they made? They promised all of us work opportunities; yet it took my daughter a
very long time to obtain work while they did hire people from other villages for similar work. They
promised scholarships for our children: not many have been given. And so many more things they
promised yet didn’t do. Yes, MSX improved our livelihoods, but not as much as we all expected and
hoped. I feel I have let my people down: I was the one most positive about the mine, and look what
we have now. We are all very worried about the contamination. Sometimes we smell the smell of
almonds coming by which is caused by the cyanide19. We report this to MSX but they do nothing to
reduce the risks. Some children have died due to heart problems and more people have died a
suspicious death. But what can we prove? They won’t let us visit an independent doctor: they only
pay the visit to the doctor they provide for us. But how can we be sure that this doctor is honest?
Life was easier before MSX arrived. One could wander around freely in the field, without being
restricted by fences. Our animals used to walk around where ever they wanted, in search of food.
Nowadays this is not possible anymore. When I want to go to my corral to take care of the few
animals I still have, I have to ask MSX for permission since it is within their area. We don’t feel free on
our own land anymore. MSX is keeping a close eye on us: right behind my house you can see their
cameras. They are observing us day and night. Moreover, the dust pollution and maybe the cyanide
have severely affected our harvest. I still cultivate my fields, but the one located closest to the
lixiviation area hasn’t given any yield at all. The plants are often covered in dust: how are they
supposed to grow like that? It has rained quite a lot this year and in other places my milpa grew
19
Cyanide, though can sometimes be without odor, is in general described as having a smell like bitter almonds. Cyanide is
emitted by almonds (and other plants such as peaches and apricots) and is considered an evolutionary mechanism to avoid
animals from feasting on their seeds and pits (Lutz, 2010).
47
pretty well. It must be the mine affecting my harvest, but what can I prove? I have no money or
education to prove all this.
Eventually I think that the problem lies with our government. I wish the government would take care
of us, that they would force MSX to operate more transparently. MSX claims to monitor the air and
water for pollution, yet we have never seen any of the results. I can understand that MSX would not
want us to know about possible pollution, but the government should do more for us. They left us
standing in the cold while they are enriching themselves with MSX’s money. We are very worried
about the future: MSX is not going to operate here forever. They don’t tell us anything so we have no
idea until when they will operate here. What are we going to do when the mine is gone? The history
is going to repeat itself. Everybody will leave La Zapatilla since there is no work. But this is where we
were born, this is where we were raised and where we got married. How could we not love our land?
Only the old people, me, my wife and some other people, will stay here. I am not a city person, I am
happy in the field. Yet most of us stopped cultivating our land a long time ago. The best fields for
cultivating were sold to MSX: now their offices are on top of it. Living off the land is a hard life and
the young people are not attracted to this lifestyle anymore. On top of that, what can they do with a
contaminated area? We have no option. When MSX will go, the life will go from our village as well.
Doña Maria Guadalupe Moreno Sanchez
Doña Maria Guadalupe Moreno Sanchez was born in Cerro de San Pedro in 1948, the year that
ASARCO abandoned operations in the village. When she was born, Cerro de San Pedro counted about
5000 inhabitants, so many that even caves in the area were inhabited. However after a quite literally
‘golden age’, life got difficult when ASARCO left and the town knew a period of exodus. Doña Maria
about her life:
“My father cultivated the fields of the family that were located in Montecaldera, a town about four
kilometres from Cerro de San Pedro. Our crops were rain fed and were cultivated from July to
October, the months with most rainfall. Our fields were the property of my mom, who had inherited
them. It was her private property. We cultivated everything we needed: maize, several types of
beans, calabash, peas, potatoes, barley, mustard and sunflower. Our land provided enough for our
entire family. Today, our fields are empty. During the last five years the climate has been really
unreliable: it hasn’t been raining like it used to. We feel we cannot trust in the climate anymore.
Besides the cultivation of our land, my father used to have many animals: cows, goats, horses, sheep,
chickens and pigs. We had a few corrals in which the animals were kept and some ponds where they
could drink water.
My family belonged to one of the richest of town: my father had the opportunity to go to the United
States to work as a brazier. He did this for years: he came and went, for months at the time. He had
hired a few labourers that took care of the land and the animals whilst he was away. Economically,
our life was very good. My mom took care of the house and she had hired a few nanny’s that took
care of us; we never had to help taking care of the house. I was always outside in the field, riding
horses and visiting our fields with my father. My childhood was amazing, my parents adored me! I
was a happy girl.
In these days, water provision wasn’t like it is nowadays. Water came from Palma de la Cruz (another
community about 10 kilometres from Cerro de San Pedro). There were a few wells there and they
48
transported the water in pipelines to our village. The water back then was so much cleaner than it is
nowadays! No chlorine, no dust in it.
I went to primary school here in Cerro de San Pedro, but only until the third grade. In these days
Cerro de San Pedro still had many children. Nevertheless, from the fourth grade on I went to school
in San Luis Potosí since they didn’t provide these classes in Cerro de San Pedro. I moved in with my
aunt, who lived close to school in Cerro de San Pedro. My father paid her to take care of us. Life with
my aunt was totally different. I missed my parents and their affections. Every weekend I went to visit
my family. I stayed with my aunt when I was nine to twelve years old, just like all my brothers and
sisters did. After finishing primary school I went back to my parents’ house. I didn’t want to go to
secondary school as I preferred staying with my parents.
When I got older, my parents fortune came to an end. My father was the president of the
municipality and had made some enemies within the political arena. So when someone was
murdered in town, they put my father in prison for nine months, despite the fact that he was
innocent. My mum spent almost all our money on the best lawyers and when my father was finally
liberated, all our money was finished. From that moment on, we didn’t have any helpers in the house
anymore. Later, my father went to the United States again, to make some money.
When I was 26 years old, my husband and I got married and we moved to Mexico City, where we
lived for about five years. Our children were born in Mexico City and when the youngest was two
years old, we moved back to Cerro de San Pedro. But life had changed profoundly in the village.
Many families had left in search of work in other places, and many of the services such as water and
electricity had gone. The pipelines that had transported water from Palma de La Cruz to Cerro de San
Pedro had been robbed and there wasn’t any electricity either.
Life as a married woman was difficult: my parents didn’t help me anymore financially, but we never
died from hunger. My husband worked as a tourist guide, as many tourist came to visit Cerro de San
Pedro after an article about our town had appeared in the famous magazine ‘México desconocido’. I
took care of the house, but meanwhile I managed to finish the secondary school. My husband nor I
had ever worked in the mines and we didn’t want our children to have to work in the mines either. It
is very hard work, dangerous and unhealthy, and the wages were very bad. So we did everything we
could to provide our children with education. I’m proud to say that they both have obtained an
academic degree.
MSX arrived in 1996 and announced it wanted to operate an open pit mine. My husband and I were
against the plans from the very beginning; besides, we never had the necessity to work for the mine.
We saw another future for Cerro de San Pedro, since the tourism had started to pick up and there
were many plans for the development of Cerro de San Pedro, such as the build of a hotel, there were
a few restaurants and people came over the weekend to visit us. We didn’t need the mine at all! On
top of that, we saw that they would destroy our surroundings, the land with which we are
connected. My family descends from the Huachichiles: I belong here. This is my land.
Before MSX arrived, life was very different in Cerro de San Pedro. The town was united, despite the
fact we were only few: we were friends and we organized parties on the 24th of December, the 31st,
and Independence Day. We used to have dinner together, there were masses, we would dance on
49
the square, and so on. This all changed when MSX came. They divided us. In the very beginning,
almost everyone was against the plans of MSX. However when MSX started to pay people for they
‘vote’, things changed. Our neighbours became our enemies! It got really violent, once they even
tried to shoot my husband. The mine tried to shut up the people who were against them. Houses
were set on fire, they boarded our houses up, they did everything to intimidate us. But of course it
was never proven that the mine was behind these things. These were really scary times, especially
when our mayor was murdered. We stayed in the house and didn’t meet up with our neighbours
anymore. We were lonely.
My husband, who was the fiercest in his opposition against the mine, passed away a year ago. Since
then, the relationship with our neighbours had normalized a bit. We greet each other in the streets
again. Yet we never interact with those who work for the mine. Sometimes they invite us for their
activities, but we never go. They might start to think we’re now okay with the presence of the mine,
but we are not. Moreover, we will never forget how our neighbours have treated and threatened us
a few years ago. This village is now a divided place. Life will never be the same here.
How we think the future will be for Cerro de San Pedro? Probably the town will be empty within the
next 30 years. There are almost no people left here, and the ones who are, are old. Without sources
of work, Cerro de San Pedro is not a good place to live. Who knows, in a few years the mining
company might get what it wants after all. When all inhabitants of Cerro de San Pedro are gone,
there is no one stopping them from taking the village down and exploiting the gold reserves that are
below it.
50
Chapter 5. Analysis of the conflict using the ERA framework When analysing rights to resources and the possible conflicts that can arise over these rights, several
levels of abstraction can be distinguished. Dividing the conflict into these different levels of
abstraction helps to clarify the phenomena that are witnessed or noticed during the research.
Boelens (2008, p. 7-8) describes these different levels of abstraction in the Echelons of Rights
Analysis (ERA), which are elaborated below. This analysis shows that resource strategies go beyond
just the ‘resources’, that the different levels are disputed domains and that these domains are
interrelated (Boelens, 2008).
Echelon 1 - Access to and withdrawal of resources The first level in the ERA is about conflicts over access to and withdrawal of resources. In order to
materialize these access and withdrawal rights technological artefacts, infrastructure, labour and
financial resources have to be in place (Boelens 2008). In this echelon the distribution of a resource
and how the access to this resource is negotiated and obtained is analysed. Who has access to the
land and water? And are these access rights connected to land rights, or are they separate? How are
access-rights divided and allocated?
Quantity and quality of the resources
This environmental conflict is, in essence, concentrated around the access to the ejido land of Cerro
de San Pedro, the huge water requirement of MSX for their mining process and the risks at
contamination of the aquifer and the environment. In this sense there is a conflict over the quantity
and the quality of these resources.
Quantity:
- A large amount of land is occupied by MSX which is being contested by opposition and local
inhabitants. The means by which the land was occupied has been subject to controversy, and
in practice the occupancy means that local inhabitants are no longer able to use this land for
agricultural purposes, tourism and artisanal mining.
- MSX requires a large amount of water for operation of the mine, in an area in which water is
a scarce resource.
- Gold and silver: a Canadian mining company can take the gold and silver reserves that are
present in the area. Local inhabitants/Mexican citizens hardly receive any compensation for
the precious minerals present on their land. When the mining company finished operations,
the land will be left without its reserves.
Quality:
The mining activity has large impact on the quality of the environment. Great controversy exist over
the possible negative consequences for the quality of the land and water in the affected area, such
as: 1) contamination of surface and groundwater; 2) dust pollution; 3) negative impact on flora and
fauna; 4) contamination with heavy metals; 5) profound change of the surface of the landscape; the
question is with what quality land the local inhabitants will remain after MSX closes the mine.
The conflict occurs mainly between the ejidatarios, opposition groups, inhabitants of the local
villages and citizens of San Luis Potosí on the one hand, and the mining company MSX and the
Mexican government on the other hand. Looking a bit further than the obvious, the conflict is also
51
about financial resources, the contribution of taxes, access to infrastructure, and the way in which
resources form a part of the culture and a certain lifestyle.
Labour, financial resources and contribution of taxes
Labour is one of the issues subject to conflict. Local inhabitants claim that MSX promised to provide
all inhabitants with jobs, yet currently, not all interested inhabitants are employed by MSX.
Moreover, the mine claims to have employed 246 people from local communities (Newgold Inc.,
2012b), yet this is being contested by local inhabitants who claim this number is far less20. Local
inhabitants have, besides the possibility of obtaining a job, little financial benefits from the mine in
their area. Before the 2013 changes in the Foreign Investment Law, mining companies did not have
to pay taxes over their revenues. Local inhabitants did not get a share from resources that were
taken out of their area and this frustrates many of the local inhabitants I have spoken with. They feel
that ‘their’ wealth is being taken away without sufficient compensation21. Also after the 2013
changes in the Foreign Investment Law, however, there is little hope for sharing a tiny percentage of
the revenues; mining companies are able to rebate many costs from their revenues, thus diminishing
or even evading the now obligatory tax contribution.
Access to infrastructure
Many houses in Cerro de San Pedro are owned by the mining company, but discussion about the
legitimacy of the ownership is ongoing. Balthazar Loredo, murdered mayor of Cerro de San Pedro,
wrote in an open letter a complaint against the previous mayor of Cerro de San Pedro and MSX
about the illegal sales of houses located in Cerro de San Pedro, to MSX. He claimed that the sale of
these houses was illegal and that MSX did not have possess legal property titles to these houses.
However, this was not cleared up after his assassination and to date, MSX continues to be the owner
of these houses (Peña & Herrera, 2008a; Peña & Herrera, 2008b; Vargaz-Hernandez, 2006).
Another dispute over infrastructure touches upon access to roads. During project preparation MSX
closed off several roads that were being used by the inhabitants of Cerro de San Pedro, La Zapatilla,
Cuesta de Campa and Portezuelo, allegedly without having the required permits. MSX and put a
fence around it as such to avoid the villagers to enter those areas (Vargaz-Hernandez, 2006). To date,
inhabitants complain about the lack of free access to what they consider ‘their land’, due to mining
activity by MSX21. The current privatization of the land in Cerro de San Pedro shows parallels with the
historical ‘enclosure of the commons’ that took place in England from the 16th century onward. The
enclosure of the commons is a process in which common land is transformed to private land with
access for only the title holder, and takes place more often as the value of the land increases.
Enclosure of the commons can take place both by selling the land to a private party, or by
parliamentary enclosure, the latter which has historically gone hand in hand with force, resistance
and sometimes even bloodshed.
Resources as a part of the culture
One of the issues that has played since the announcement of MSX to excavate the Hill of Saint Peter
has been the loss of cultural heritage that this hill represents for inhabitants of Cerro de San Pedro
20
Data retrieved from interviews with local inhabitants of Cerro de San Pedro and La Zapatilla, Sept-Dec 2013. 21
Data retrieved from informal conversations during fieldwork with inhabitants of the local villages and the city of San Luis
Potosí, Sept-Dec 2013.
52
and San Luis Potosí. The Hill of Saint Peter is part of the reason why San Luis Potosí was founded; it
even adorns the emblem of the city of San Luis Potosí. Many people have argued that with the
excavation of the Hill of Saint Peter, also a large part of the history of San Luis Potosí would be lost.
They see this hill as essential cultural heritage that could not be missed.
Perhaps a less obvious issue at stake is the degradation of the quality of inhabitants’ livelihood
resources, which goes together with the denial of a certain lifestyle. Many of the people living in
Cerro de San Pedro and La Zapatilla that I have spoken to have told me that their lives are not the
same anymore since MSX has arrived. As MSX has fenced up large parts of land, this area is no longer
freely accessible to the residents of the surrounding villages. Possibilities for agriculture have been
reduced as MSX occupies large parts of land, previously used for extensive grazing and the cultivation
of crops. This land was once given to the ejidatarios with the intention they use it for agriculture: yet
in order for the land to be of use to the ejidatarios, it first has to be available to them (Herman,
2010). Besides the fenced up areas, inhabitants complained about the camera surveillance which is
present in many places. Many inhabitants feel their privacy is compromised by this camera
surveillance. Lastly, the intensity and longevity of the entire conflict has left its marks within the
social atmosphere of the villages. Did the inhabitants feel connected with each other once, today
different interests and profound distrust have driven a wedge between the social cohesion in the
villages. This taken together has taken away the ‘free’ lifestyle that the inhabitants of Cerro de San
Pedro and La Zapatilla had before MSX arrived.
Echelon 2 - Contents of the rules The second level in the ERA refers to conflicts over the contents and meaning of the rules and
regulations that are connected to the rights to the resources. Conflicts often occur over the contents
of rules, norms and laws that determine the allocation and distribution of a land and/or water
resource. Key elements of analysis in this field are the bundles of rights and obligations, roles and
responsibilities of users, criteria for allocation based on the heterogeneous values and meanings
given to the resource, the diverse interpretations of fairness by different stakeholders (Boelens,
2008; Zwarteveen et al., 2005). In the second level, conflict over the content and meaning of the
rules and regulation, we see that the conflict gets more intense. Both the content of the laws and the
way in which the legal processes were fought over in court has given reason for conflict in Cerro de
San Pedro.
A long and protracted legal struggle preceded obtaining the required permits. Even though the main
conflict is about the access to the land and the water, other permits such as the environmental
permit, land use change permit, explosives and blasting permit, etc. had to be obtained in order to
materialize this access. Part of the court cases was aimed towards land acquisition and another part
towards the validity of the environmental, land use change and explosion permits. The struggle over
these permits make up a large part of the litigation.
Rights to access the land
Land access was long fought over, in various courts. Mexican law holds that surface of the land
belongs to the land right holders, in this case the ejidatarios, yet the subsoil remains property of the
government. This means that for MSX to obtain access to the land both a mining concession for the
subsoil from the Mexican government and a rental agreement with the ejidatarios is required.
53
Obtaining the mining concession from the government did not form a problem; however, the original
ejidatarios did not agree with a rental of the communal land of their ejido. After producing a false
lease agreement which eventually was declared void, MSX obtained access to the land through an
Temporary Occupancy Agreement. This Temporary Occupancy is still being disputed in court.
At the very base of this conflict are two laws, the Agricultural Law and the Mining Law. Mexico’s
Mining Law considers mining to be of benefit to the entire society. As such any kind of exploration,
exploitation and beneficiation of minerals should ‘get preference over any other types of land use’,
including agriculture and housing (GAES Consultancy, 2007; Herman, 2010). However, this is not in
accordance with article 75 of Mexico’s Agrarian Law, which states that “in cases where lands have
been proven to be of use to the ejido population, the common land uses in which the ejido or
ejidatarios participate may be prioritized” (Herman, 2010, p. 84). To ensure that mining activity can
eventually take over all other forms of land use, article six of the Mining Law enables land to be
alienated through ‘temporary occupation’ (Herman, 2010). However, the Agricultural Law never
speaks of an temporary occupation and does not recognize this as an legal action. Moreover, the
Constitution considers land given to the ejidos to be “imprescribtible, inalienable e inembargable” –
or, under certain exceptions, not susceptible to limitations in time and they cannot be alienated.
However, what has taken place in Cerro de San Pedro, is exactly that. By denying ejidatarios the
property of the subsoil as well as the surface, ejidatarios are legally being put off play. The
Agricultural Law recognizes them as the legal landowners and according to this law, land is
inalienable. Yet the Mining Law states differently. As mining activity is established as a ‘public
interest’, the threat of having their land expropriated in the name of ‘public interest’ is ever-present
for Mexican landowners. Thus landowners find themselves in a disadvantaged position: if they don’t
agree with a lease contract they risk losing everything, without any compensation, through a
temporal occupancy. This brings landowners in an unequal negotiation position and might force
them to accept unfair lease contracts (Clark, 2003; Ochoa, 2006). Estrada et al. (2001) state that local
inhabitants are often even further disadvantaged by the lack of following up of the laws in practice.
Officially, so they state, the Agrarian attorney is obligated to supervise and assess the process of
selling or renting ejido land to third parties: yet in practice this is often not done. They claim that in
the majority of the cases in which lease or sales contracts were produced between ejidos and a
mining company, the ejidatarios were not informed about their rights and the possible risks of living
close to mining activity, thus agreeing on a lease agreement without grasping its full consequences.
Moreover, the position of land owners is even further disadvantaged by NAFTA, which stimulates
and empowers investors’ rights, while local communities are not given the right to object to
resolutions taken in NAFTA’s court. Also the power of the national state is diminished by NAFTA as it
has the power to supersede national legislation through its chapter 11.
Rights to use water
Another large point of criticism in the Cerro de San Pedro case was the grant of water concessions
summing up to one million m3 of water annually, in an area in which water is already labelled
‘scarce’. Moreover, the Decree from 1993 clearly states that for a period of 20 years the area is not
destined for industrial activity, or for any other type of activity with high water demand; rather it
should be enrolled in a reforestation policy, as such to stimulate water retention and wildlife
(Gordoa, 2011; Vargaz-Hernandez, 2006). The fact that this Decree has been ignored and annulled
shows the great interest of certain actors in the continuation of the project, and the extent to which
54
an international, powerful actor as MSX can influence national environmental legislation. Chapter 11
of NAFTA in the background also plays a role in this, yet this is discussed in Echelon 3.
Another part of discussion is the changes to the water rights made in 1992. These neo-liberal
changes have converted water rights from a non-commodity to a tradable asset, having large
consequences for the possibility for MSX to operate within San Luis Potosí. The 1961 veda that was
put upon the aquifer in San Luis Potosí inhibited the construction of new wells within the area,
except if the water from these wells was to be used for human consumption. Changes to the water
rights in 1992 however, converted water rights to tradable water rights and permitted, also in zonas
de veda, the purchase and sale of water rights. This meant that new wells can be constructed,
considered as a ‘relocation’ of the old well. The transfer of the water rights and the permission for
the relocation of the well have to be approved by Conagua (Conagua et al., 1992). For the case in San
Luis Potosí this meant that, despite the veda zone, new wells could (and can) be constructed and not
only for human consumption. MSX obtained its water permits making use of the new regulation and
as such managed to get concessions for 1 million m3 annually. Project opponents state that, keeping
in mind the severe overexploitation of the aquifer, the tradable water rights put extra pressure on
the aquifer in San Luis Potosí and endanger future water provision for the San Luis Potosí
inhabitants22.
Requirements for granting a mining permit
The Mining Law establishes that a mining concession is granted to the first solicitor; and not to the
one who proposes the best technically and economically sustainable project (Estrada & Hofbauer,
2001). Moreover, the INE, responsible for granting the environmental permit, has only 90 days to
inform the solicitor whether or not the permit has been granted. This is widely considered as a very
short time lapse to be able to consider a mining request in depth, which could lead officials to grant a
permit without thoroughly reviewing the data the mining company has presented (Estrada &
Hofbauer, 2001).
Once a permit has been granted, Mexican law does not make it easy to rap a company over the
knuckles in the case it contaminates the environment. Articles 54,55,56 and 57 of the Mining Law
state that it is not possible to cancel or revoke a mining concession in case the mining company
contaminates the area; only administrative measures can be taken (Estrada & Hofbauer, 2001). In
this way, mining legislation seems to put exploitation of minerals above environmental health and
safety, something that is being disputed by critics on the Mining Law.
Echelon 3 - Decision making authority In the third level in the ERA conflicts over the decision making power are analysed. Who is entitled to
participate in questions about the division of land and water rights? Often decision making power is
only given to certain people; others are not welcome to join the process. Whose definitions, interests
and priorities prevail? Who is able to exert influence? These issues are determined as much by social
constructions as cultural norms.
22
Data obtained during interviews with members of FAO, Sept-Dec 2013, San Luis Potosí.
55
National and international legislation
In this echelon I mention a few issues within Mexico’s system of laws and policies that are being
disputed in the Cerro de San Pedro case. The first one is the intrasystemic legal pluralism between
the Agricultural Law and the Mining Law, that was explained in Echelon 2. Which one supersedes the
other, and who is to decide so? FAO argues that the Agrarian Law supersedes the Mining Law, yet
other institutions think differently and this has caused a seemingly unending legal process. The
contents of these two laws are being contested (echelon 2), but also the decision making authority is
part of the conflict. The laws are being interpreted differently by different stakeholders: yet who is
right and who has the right to decide? The endless cycle of court cases shows that none of the
stakeholders is willing to grant the decision making authority to the other party, thus the conflict is
never put to an end.
Another part of the dispute over decision making authority is linked to the three decrees that have
been issued in the past (zona de monumentos, zona de veda and the zona de preservación de vida
silvestre), which have been overthrown in favour of mining activity. Recent political developments
have altered or interpreted the decrees differently and as such welcomed MSX in the area. However,
the decision authority for overthrowing these decrees (varying from the state governor to national
government) remains to be disputed in the courts. FAO is actively fighting the decisions taken by
authorities and, so it states, will continue to do so until MSX has left Cerro de San Pedro.
Another issue within this echelon is the possibility for local inhabitants to voice concerns or object to
the granting of permissions for mining development in their surroundings. Alvarado García (2009)
states that one of the most obvious ways in which the local inhabitant or the ‘public’ is kept from
interfering with granting of permissions is the lack of public hearings in which an individual can voice
its concerns about possible mining activity in the area. In countries such as the United States, she
states, public hearings are an essential part of the process before permits are granted; yet in Mexico,
local inhabitants are rarely given the opportunity to be heard. On the contrary: often the people
living in the close surroundings to the (planned) mine, are the last ones to receive information about
these mining plans (Alvarado García, 2009). In the Cerro de San Pedro case there was only one
opportunity for inhabitants to argument against the provision of the environmental permit. In her
thesis Herman (2010) describes how Cerro de San Pedro inhabitants were informed about the public
hearing less than two days before the hearing took place, leaving these people with very little time to
prepare. After the hearing took place, Semarnat, the governmental body in charge of these hearings,
is free to decide whether or not it will give follow-up on the arguments put forward. The fact that
public hearings are not required, and that if they take place, follow up on the given arguments is
uncertain, gives rise to the discussion about the roles and responsibility of the government and
government institutions. The way in which the process of granting permits currently is designed
inherently devalues and dismisses the opinion of the local communities and their right to raise
concerns/object against developments they do not consider desirable.
International legislation has also put its mark on developments in Cerro de San Pedro, and brings up
the question of which type of legislation (national or international) supersedes the other. For this
case the piece of international legislation that has had a profound effect on the presence of foreign
companies in Mexico is NAFTA’s chapter eleven. Through this provision foreign companies are able
to sue the host government, if it considers that the host government has not complied with
56
agreements made under NAFTA, and that the company as such is economically being disadvantaged
by the host government. In practice this means that, on more than one occasion, governments have
been sued by companies over the revoking or cancellation of environmental permits, after which the
companies have gotten a compensation for their economic loss from the host government, put up by
NAFTA (e.g. Kass & McCarrol, 2000). As such the NAFTA takes an enormously powerful position of a
foreign company vis-à-vis the host government. On a local level NAFTA also collides with decision
making authority. Local communities are not allowed to object against resolutions taken within the
NAFTA even though they often are the ones facing the most impact. Denying local inhabitants and
communities to file a complaint under NAFTA repudiates their legal status and stake in the conflict.
This seems unfair and, once again, creates enormous power differences between the local
inhabitants versus the foreign company, a battle that has started off on unequal grounds anyways
(Ochoa, 2006).
Temporary occupancy
In 2005, MSX used a provision within the Mining Law that foresees in a Temporary Occupancy of the
land with usufruct of that very land. In 2005 this Temporary Occupancy was granted by the Ministry
of Economy and as such the ejidatarios were put off play. The granting of the Temporary Occupancy
has given birth to a much deeper discussion about the contents of the laws and how they interact. In
this case, the Mining Law was given preference over the Agricultural Law, but a large litigation
process was started after the temporary occupancy was granted. The decision making power of
Mexico’s courts has been contested: who is to decide whether the Mining Law supersedes
Agricultural Law, or otherwise? This discussion is profoundly connected to power positions, discourse
and knowledge, as I discuss in the fourth echelon. The possibility for mining companies to obtain a
temporary occupancy of the land, forces ejidatarios (or any other type of landowner) to choose
between accepting payment in exchange for their land, or refusing a rental contract and seeing their
land expropriated (Ochoa, 2006). As such the temporary occupancy provision within the Mining Law
de facto undermines the land titles of ejidatarios, inexplicitly disputing the trustworthiness and
continuality of Mexico’s tenure rights.
“From pillar to post” policy
The long legal battle and the different courts rejecting responsibility and consequently referring to
other courts, has enabled MSX to continue operating while court cases remained pending. Several
members of FAO have mentioned they feel that the Mexican government has deliberately adopted a
strategy of rejecting responsibility and referring to different courts, to postpone decision making and
meanwhile give MSX the chance to operate in the area23. In this sense they argue that the Mexican
government has adopted a ‘from pillar to post’ policy in which decision making is deliberately held
off. Herman (2010; p. 85) quotes in her thesis Esteban, lawyer of FAO, who states that “the legal
processes are so poorly managed and the regulations are so vague that there are lots of ambiguities
around the Agrarian Registry... So the ejidatarios are not only against the mine, they’re also litigating
so that the courts recognize their rights.”
Even if this case in Cerro de San Pedro would be resolved one day, FAO member Martinez Ramos
claims not to stop fighting for what he considers justice in the mining arena of Mexico: “even when
23
Data retrieved from an interview with Martinez Ramos, member of FAO, November 2013.
57
MSX leaves Cerro de San Pedro, our job is not done. There are so many other places in which the same
thing is going on. We are not so much fighting MSX, as the Mexican government: eventually, the
government is the one who allows the law to be broken. Our goal is to change this governmental
system, full of corruption, and to change the laws and the legal system that make it possible for
companies such as MSX to operate in the illegal way they currently are. Me and some of my friends
are involved in the process of writing a new Mining Law, which we want to present to the government
when it is finished. We hope it will make a positive change to the current perversity of the laws and
reduce the amount of problems related to mining activity in Mexico.”
During many of the interviews that I have conducted, with both pro- and anti MSX citizens,
corruption has been mentioned as one of the main causes of the many problems concerning MSX’s
mining operations. This goes from the granting of permits, to the supervision of daily mining
practices and the execution of court sentences. The seemingly never-ending litigation process
appears to be subject to corruption as well; however it is beyond the scope of this thesis to
investigate this into dept. The opposition against MSX, in this sense, can be considered covert
opposition against the corrupt governmental system. Or, as one of Cerro de San Pedro’s inhabitants
stated: “if we really want to change things in Mexico, we need a new revolution”24.
Locally elected authorities vs. state system
Another important issue are the differences between interests of locally selected authorities and the
state and national government, and their interactions. When in 2003 Óscar Loredo was elected, he
opposed the development of MSX and publicly stated he would not authorize the municipal permits
required for MSX to start operation. However, seven months after this statement, Loredo announced
he had changed his mind under the pressure of the mining company, the state government and even
the national government: allegedly, president Vicente Fox had paid him a personal visit to persuade
him to change his mind. Óscar Loredo no longer could stand the pressures and, eventually, gave in
(Herman, 2010). This example shows the extent to which economic interests prevail over the
autonomous decision making per governmental level and undoes the autonomous decision making
authority a municipality has. This example confirms the widely spread conception of a corrupt
Mexican government system and severely weakens the possibilities that project opponents have to
control outcomes through the governmental system: the Mexican governmental system claims to be
a democracy, but to which extent is this actually the case?
Echelon 4 - Discourses The fourth echelon considers the opposing discourses that are used by the different stakeholders to
express the problems and solutions concerning land and water rights. Different regimes and types of
representation claim the ‘truth’ in different ways and in this way legitimize their actions and the
distribution of the resources’ bundles of rights.
MSX’s discourse
MSX uses a large range of arguments that all together make up its discourse. I have analysed the
arguments that MSX has used in its campaign, to validate and justify its presence in Cerro de San
Pedro. It is impossible to display the large amount of arguments, but I have given an overview of the
main arguments in Annex 5. In this chapter I discuss the overarching discourse strategy of MSX. 24
Quote retrieved from an interview with an inhabitant of Cerro de San Pedro, November 2013
58
Our Commitment to Health and Safety, Environment and Corporate Social Responsibility At New Gold, we make it a priority to act as a responsible mining company, from our management practices to our health and safety standards to our stewardship of the environment. We understand that our business activities have an effect on the people who work in our operations, their environment, and on their communities. Our growth and success as a company depends on the long-term economic, social and environmental sustainability of each of the communities in which we work and live. We are committed to maintaining the highest health and safety standards in our mines and development projects. We seek to minimize and mitigate the impacts of mining on the environment, and to practice effective, progressive rehabilitation of mined areas. To ensure that communities benefit from our activities, we make significant contributions to local social and economic growth. We run support and development programs ranging from infrastructure initiatives including roads and housing, to local educational facilities improvements, community medical and dental services and extensive land reclamation programs. At all times we strive to demonstrate our respect for local cultural and environmental values. We regularly update our policies in the key areas of health and safety, the environment and corporate social responsibility, and monitor our success against the three pillars of sustainability - economic achievement, environmental performance and sustainable communities.
Figure 15. Part of Newgold Inc.’s discourse (the Canadian mother company of MSX), as
stated on their website. Source: (Newgold Inc., 2012c)
Under the title ‘Corporate Social Responsibility’ MSX is advocating that the company is not only
interested in gaining benefits from its mining activity, but that it is also deeply concerned with the
environment, health, safety and community development in both social and economic terms
(Herman, 2010; New Gold Inc., 2012). MSX states it will do so by providing jobs, education,
healthcare and infrastructure to the local residents. Work and safety standards at work are high; the
wages that the mine offers to its workers are in general rather high compared to Mexican standards25
(Newgold Inc., 2012b). This gives the impression that MSX is genuinely concerned with the
livelihoods of its employees. Part of this discourse is the publication of an annual ‘Sustainability
Report’, in which MSX provides information on the progress of that year and which projects have
been undertaken to reach objectives (both in the mine and for the environment, health, safety and
community development.
MSX’s mission is “to execute mining processes that generate a profitable business, whilst taking care
of the environment and cultural heritage, and aiming for the wellbeing of their workers and their
families, as such contributing to the sustainable development of the area in which they are
operating” (New Gold Inc., 2012: webpage). MSX strongly advocates not only to be concerned about
making profit, but also about caring for the environment and community development. In figure 15 I
cited a piece of text that Newgold Inc., the mother company of MSX, has posted on its website. This
text displays MSX’s discourse quite well and provides background information on why MSX makes
certain choices in its discourse.
25
Data partly retrieved through interviews and informal conversations with local inhabitants and employees of MSX,
September-December 2013.
59
Keeping MSX’s mission and the other ‘commitments’ stated in table 1 in mind, MSX’s discourse is
made up out of the following elements.
- MSX uses technological advances as synonym to ‘safe’: it states that with the new
technological advances, the production process is as safe as it gets, and that adverse
environmental impacts are thus not existent (Santacruz de Leon, 2008).
- MSX claims to operate in close cooperation with local and national government, and that it is
operating with their approval (table 1): “we have obtained water use permits from Conagua
to extract water from the deep aquifer, but are also trying to incorporate the use of treated
water to reduce water requirements from the deep aquifer”. By the way in which they
formulate their arguments they want to make it seem like they it is not them, but the
government who is wrong (if there is a ‘wrong’) in providing them the water concessions
(MSX is rejecting responsibility), on top of which they claim they also want to improve the
situation on their own initiative, making them seem like the ‘good guy’.
- MSX tries to obtain certain ‘sustainable’ certificates, such as the “Conflict-free Gold” and
‘voluntarily’ meeting the requirements of the Sustainable Cyanide Management Code (table
1). By linking their company to these sustainable initiatives and groups, MSX aims to upgrade
its image to a more sustainable and environment-focused company. This is an effort of the
entire gold mining sector as these certificates are examples of certificates created and used
mainly by the gold mining sector.
- The company tries to undermine the legitimacy of the opposition by branding them irrational
and radical. Martinez Ramos: “MSX has published negative information about active
members of our movement, as such to make them seem implausible and, eventually, we
could not continue working with these members as they undermine the plausibility of our
own movement. We have lost many active, involved members due to this strategy of the
mine. However, we cannot prove that the mine is behind this.”26
By strongly advocating their commitment to security, health, environment and sustainability, MSX
tries to create a linkage between large scale open pit mining and positive development of the area.
At first sight these four words have little or no linkage with mining activity, yet MSX tries to make
them appear a logical association with their company. By obtaining renowned certificates confirming
their ‘sustainable operation strategy’ MSX aims to comfort the public and government when it comes
to health, environment and pollution.
Boelens (2008) explains how a powerful discourse, combined with a strong power position and the
creation of knowledge can have ‘truth be made true’. MSX has a very powerful position in this sense:
its power position is influenced by a strong economic position that can be used to influence public or
governmental opinions; moreover, provisions in NAFTA provide an extremely powerful negotiation
position vis-à-vis the Mexican government and local inhabitants. Knowledge can be created by MSX
as the company itself is in charge of monitoring the quality of water, air and soil. Likewise, MSX is not
being controlled as agreed before operations started: in order to obtain the environmental permit,
MSX has agreed upon one hundred contingent points. However the committee in charge of
controlling whether these points are actually executed in practice was dissolved in 2010, when
26
Urkidi (2010) confirms that this strategy is used more often and states that also in a mining case in Chile that he
researched, the opposition’s legitimacy was undermined by the mining company by applying such practices.
60
funding stopped after a change in the San Luis Potosí state government27. There is little transparency
about contamination and mining results, and issues such as the elimination of the control group
make it seem like the mining company has a carte blanche and is hardly being controlled by Mexican
authorities. The powerful position that MSX has vis-à-vis the local inhabitants (that are dependent on
the company to provide them a living), local, state and national government makes it questionable
whether the published data are actually correct, but the government does not come up with a
counter or correcting discourse about MSX’s activity.
Another discourse of the mining company, perhaps not one most obvious but certainly present, is
the ‘divide and rule’ strategy that MSX has applied under the villagers. When MSX to Cerro de San
Pedro, the village was unanimous in its objections against the mine. Local inhabitants told stories,
however, about how slowly the ambience in the village changed and opinions about the mine started
to become divided. People state that certain families received money in return for their vote, others
did not receive anything. The division between Cerro de San Pedro’s villagers came to an all-time
high when several pro-MSX villagers attacked their con-MSX villagers, with the anti-mine villagers
just able to run for their lives28.
Local inhabitants’ (counter) discourse
Due to the ‘divide and rule’ strategy applied by MSX, it is difficult to speak of one single discourse of
the inhabitants of Cerro de San Pedro and La Zapatilla, since the opinions on MSX within and
between the two villages are very diverse. In general, La Zapatilla are and have been in favour of the
mine and the majority of the residents are employed at MSX. MSX provides one of very few job
possibilities within the area.
In Cerro de San Pedro part of the Cerro de San Pedro residents is in favour of the mine (the majority),
another part is against, and some state they do not have an opinion. An important reason of this
(im)balance is that those who have remained often are amongst the (few) ones who have got a job or
income through the mine, while emigrants from the zone lost their jobs or could not get one because
of the mining interventions. Project proponents justify their opinion stating they had been living in
underdeveloped conditions for decades and that MSX provides a much-needed source of income and
other benefits, such as community development (Reyna Jiménez, 2009). This is actually the discourse
that many project proponents use, and it is well summarized in one sentence that a La Zapatilla
resident once said to me: “I’m not in favour of the mine: I am in favour of a job opportunity here in La
Zapatilla, for me, my family and my neighbours, and MSX was the only choice we had”. The same
counts for Cerro de San Pedro residents. Another argument used by project proponents is that
opposition against MSX mainly comes from outside the municipality, from San Luis Potosí. A much-
heard argument is ‘the inhabitants of San Luis Potosí don’t face the worries we face here’, and that as
such, their objections are not legitimate to pro-MSX local residents. Many pro-MSX inhabitants of La
Zapatilla and Cerro de San Pedro feel that, even though they had preferred that their surroundings
27
Data obtained during an interview with Dr. Ir. Razo, researcher at the Universidad Autónoma de San Luis Potosí. His
research area (partly) focusses on pollution of the environment caused by mining activity. 28
This strategy is not only used by MSX in Cerro de San Pedro: Boyd (2010) has made several documentaries about mining
activity in Peru that describe the same process, amongst which ‘The Devil Operation’ and ‘Tambogrande: Mango, mining,
murder’.
61
had remained untouched and unpolluted, the socio-economic circumstances they faced left them no
choice but accepting the mine.
The few project opponents that remain resided in Cerro de San Pedro, use different arguments to
justify their point of view. In the beginning the majority of the people was against the plans of MSX.
Yet, after almost 16 years of conflict, few opponents remain resided within the village. Those
remaining residents who still oppose the mine are in close contact with members of FAO, although
not necessarily actively involved in day-to-day activism against MSX. These people state, indeed, that
the village, at the time of arrival of MSX, was actively developing the tourist sector and that MSX’s
mining plans completely interfered with their own community development plans. A hotel that was
under construction was bought by MSX and other plans were stalled because of the development of
the mine. After seven years of operation, MSX has now completely excavated the hill of Saint Peter,
that used to be the main attraction for tourism as it had old mining tunnels through which tours were
given. Hence, project opponents state that when MSX arrived, it took their source of income from
them and implicitly forced them to work for the mining company, as other job possibilities were
taken away. This is different for La Zapatilla residents as they did not have the option to develop
tourism in their area, leaving them with very few job opportunities, which has possibly contributed to
their more positive attitude towards the mine from the beginning on. The different opinions drove a
wedge between villagers and a fully-fledged conflict started within the Cerro de San Pedro village.
Project opponents living in Cerro de San Pedro talk about severe cases of intimidation, aggression
and violence against them, inflicted on them both by MSX employees and pro-MSX villagers. The
murder of the mine-opposing major is presented as one of the extreme results. Luckily, in the last
year the intensity of the conflict seems to have eased a bit29.
FAO’s discourse
The most well-known opposition has crystallized in the form of the FAO, the Broad Opposition Front
(Frente Amplio Opositor) against Minera San Xavier. Martinez Ramos (member of FAO) about the
objectives of FAO: “the only objective we have, is to make MSX leave Cerro de San Pedro. The
company is operating illegally and we will not stop until MSX is forced to abandon the site.”30
FAO aims to reach this goal by continuing to fight the presence of MSX in national and international
courts. Moreover, it is active with spreading information about the litigation process and the adverse
environmental, cultural and economic effects. This FAO does by publishing a lot of information in
newspapers, online, using social media, and organising events such as the music festival that takes
place in Cerro de San Pedro yearly. FAO also offers information and practical help to anti-mining
groups in other parts of Mexico. An important part of their strategy is the making of alliances with
local, national and international environmental organisations and universities, such as Pro Ecológico
San Luis, Greenpeace México, the Canadian religious organisation KAIROS and Amnesty International.
Obtaining alliances with international organizations is an important and remarkable part of their
strategy. In particular, FAO has made alliances with organisations located in Canada since this is
where the majority of Mexico’s mining companies comes from. FAO has, on several occasions, been
invited to Canada, to speak about their experiences with Canadian mining companies. NGO’s from
29
Data retrieved from several interviews with inhabitants of Cerro de San Pedro, Sept-Dec 2013. 30
Quote obtained during interviews with Mario Martinez Ramos, San Luis Potosí, Sept-Dec 2013.
62
other countries such as Guatemala and France have also invited members of FAO to speak for them
about their experiences with mining activity.
The alliances with national and international actors change and construct the discourse as the
conflict lingers on, thus leading to a mixture of global and local arguments (Urkidi, 2010).
International actors such as Amnesty International defend the local actors’ rights, whilst local actors
speak about injustices in international law. It is important to realize that the used arguments and
discourse are tactical resources that constantly change, following new relevant developments. In this
sense glocalization is a tactical decision of the FAO, as such aiming to access political opportunities
that without these alliances would not have been open to them (Urkidi, 2010).
63
Conclusion and discussion
Cerro de San Pedro has a long mining history and life in the village was based upon mining as a main
source of income. Agriculture was practiced for subsistence purposes; however, when mining
opportunities ceased in 1948, the majority of the inhabitants left Cerro de San Pedro. Others were
developing new livelihood strategies, for instance based on tourism, making use of the local ecology
and cultural heritage opportunities. When the Canadian mine Minera San Xavier (MSX) arrived in
1996, hardly any of the ejidatarios remained present and the land was being used by the avecindados
(people living in the area and making use of the land, but without official land title), who had never
managed to obtain an official land title despite several tries (Herman, 2010).
Water has always been scarce in the area and in 1961 a veda was imposed on the Valle de San Luis
Potosí, which included a large part of the municipality of Cerro de San Pedro. Moreover, a Decree
issued in 1993 inhibited the development of high water demanding industry in Cerro de San Pedro,
as the area was designated to contribute to aquifer recharge for the Valle de San Luis and wildlife
preservation. The aquifer of the Valle de San Luis is the primary source of drinking water supply for
the 1.3 million inhabitants of the metropolitan area of the city of San Luis Potosí, and was already
being overexploited before MSX arrived to Cerro de San Pedro. As such, interest in conserving the
aquifer is high (FAO, 2014a; Peña & Herrera, 2008a; Santacruz de Leon, 2008).
After the economic crisis of the 1980s, Mexico adopted, under pressure of the World Bank, a
neoliberal political strategy, opening up its legal system for foreign investment. This required a
profound change of land and water rights, converting them from the untradeable commodities they
were under Mexico's protectionist state, to more market-oriented, tradable rights, as such enabling
the marketing of these resources. Part of the changes in legislation entailed modifications to the
Agricultural Law, the Mining Law and the Foreign Investment Law. These changes paved the way for
joining NAFTA in 1993 (Herman, 2010).
It was after the union with NAFTA that foreign interest (and especially from the USA and Canada) in
mining in Mexico increased, and in 1996, Metallica Resources, a Canadian mining company, arrived
to Cerro de San Pedro announcing it wanted to start an open pit gold and silver mine in the area.
Years of conflict and litigation followed, and in 2007, under great protest, operation of the open pit
mine, operating under the name Minera San Xavier, started. Conflict over land and water rights has
predominated since the arrival of MSX in 1996, and to date remains present.
It is against this background that the main research question of this thesis was developed:
How has the presence of the goldmine Minera San Xavier in the district Cerro de
San Pedro, México, influenced the conceptualization, distribution and
operationalization of land and water rights of affected families in the communities
Cerro the San Pedro and La Zapatilla?
MSX has obtained concessions for the extraction of one million m3 water annually. The extraction of
such a large amount of water did not have any direct and obvious impact on the drinking water
distribution for inhabitants of Cerro de San Pedro and La Zapatilla. Communities still have access to
water; nonetheless, there is concern over the quality and eventually quantity of the available water.
64
Due to the veda that was issued in 1961, no new water concessions are given in the veda zone.
Nevertheless, after the changes in water rights that were a consequence of the neoliberal policies,
water concessions can be sold and bought, as long as the old wells are closed off. Despite the fact
that water is a ‘scarce’ resource, water concessions thus remain subject to a vivid trade market and it
is hardly likely that the overexploitation of the aquifer diminishes despite the veda. Although the
acquisition of the water concessions was a legal process, the argument that water is a scarce
resource and that the allocation of one million m3 to a mining industry does not align with the lack of
water in a few neighbouring villages, which reinforces the statement that water 'scarcity' is a political
statement rather than the natural state of this resource. The question is, where the government lies
its priorities: examples as these make it seem like economic interests prevail over ensuring that
neighbouring villages’ inhabitants are provided with the most basic human rights.
Although the acquisition of the water concessions was a legal process, there has been large
controversy over the way in which the 1993 Decree for the zone of preservation of wildlife and
aquifer recharge area was, after years of litigation, eventually overthrown by Mexico's courts.
Despite the fact that this decree was meant to protect the area and to contribute to conservation of
the aquifer, it seems that strong power influences have the ability to change laws. Conceptualization
of water rights as such is changed in such manner that laws were overthrown and interpreted
differently to serve the higher economic good, disregarding judicial and environmental impacts.
Land rights were affected in two ways in the Cerro de San Pedro case: 1) the false lease contract
which was, on first hand, accepted, later declared void; 2) the intra-systemic legal pluralism that
exists between the Agricultural Law and the Mining Law. Since MSX started operating, the ejidatarios
and inhabitants of Cerro de San Pedro and La Zapatilla cannot access 373 ha of their land anymore (a
small part of this land is owned by other ejidos: these are also affected by MSX’s operation). MSX has
fenced up the occupied area and is taking out all the precious resources. When the land is returned
in 2037, it will largely have lost all its valuable resources; on top of that, the question remains
whether the land will ever again be suitable for other uses, such as agriculture (for which it was
originally intended under the Agricultural Law).
Underlying the redistribution of the land are the changes in the conceptualisation of land and water
rights. After the 1990 changes land rights, water rights and the Foreign Investment Law, national
legislation has paved the way for foreign mining companies to operate in Mexico. Yet it is also after
these changes that discrepancies between the Mining Law and the Agricultural Law have become the
arena in which many a battle over the use of the land is to be settled, and the legal pluralism
between these two laws facilitates playing off the two different laws against each other. For the
inhabitants of Cerro de San Pedro and throughout Mexico, the discrepancy between the two laws
weakens the position of the ejidatarios, who are already in a disadvantaged position vis-à-vis
enormously powerful actors as (foreign) mining companies. These have the money, means and
knowledge to bend the law to their benefit. On top of that, the possibility for a temporary
occupancy, that can overrule the ‘inalienable’ land titles of ejidos, inherently means that throughout
the country ejidos can and will be put off-play in favour of mining companies. If titleholders do not
agree with the lease contract, they face the risk of having their land occupied by means of a
temporary occupancy, losing everything they have (Ochoa, 2006). In that sense the temporary
occupancy provision is merely a measure to provide the powerful mining companies with the desired
resource (provided by the Ministry of Economy, which says a lot about the underlying motivations of
65
the government), putting the local inhabitants off play and compromising Mexico’s tenure security.
In this way the Mexican laws undermine the possibility for rural households to sustain their ways of
life, quite ironically reaching the opposite of what was once intended after the Mexican Revolution.
Not only the above-mentioned laws are subject to critique, also the procedure of litigation gives to
think. Economic interests in the exploitation of the mine in Cerro de San Pedro are high, to the extent
where state and national government authorities (such as former president Vicente Fox) put
pressure on local authorities to authorize the access of MSX (Herman, 2010). The unequal power
position and overwhelming experience of having such high level authorities putting pressure on the
young and unexperienced mayor of such a small municipality, creates a discussion about the fairness
of procedures and to how far the autonomy of a municipality reaches in cases where the stakes are
high. Is autonomy and decentralization a real aim of the government, or is it intended just to go as
far as economic interests dictate?
NAFTA has had great influence on the litigation process on the mine in Cerro de San Pedro. By
including the chapter 11 in NAFTA, foreign companies are given the opportunity to avoid national
legislation and operate directly under the rules and regulations of NAFTA. The term ‘glocalization’ is
applicable here as these large international companies have direct influence on the local level, and
can ‘force’ the national and state government to authorize a temporary occupancy despite great
opposition from the local level. The fact that NAFTA does not accept complaints from local
inhabitants or communities further strengthens the power position of the international companies.
The way in which the NAFTA is shaped makes it seem like local communities are no relevant
stakeholder in deciding what will happen to their environment: they are dismissed by NAFTA before
even having entered the discussion.
On top of that, the ejidatarios are severely disadvantaged by the way in which Mexico’s national
processes for granting permits are shaped. These processes hardly include room for ejidatarios/local
inhabitants to voice their concerns, objections or complaints, and thus completely ignore any input
from the land’s official titleholders and/or inhabitants. Land rights can be adapted without giving
these parties the chance to defend themselves. Moreover, the quality of the land and environment is
also under threat by the way in which the processes for granting permits are shaped, as not the most
environmentally sound mining plans get granted a permit, but the first request for a mining permit is
handled (Estrada & Hofbauer, 2001). Having this as a policy undermines the importance of
environment for society and profoundly disadvantages local communities dependent on these
environments.
Environmental problems, and the conflict that arises over the contested resources, are not only
about material practices, but also about the way in which the problems are presented. Here
discourse plays a large role in justifying certain standpoints and actions, and they are crucial in
understanding how actors go about in constructing their own versions of the ‘truth’. Both MSX and
FAO try to construct a ‘truth’ by constructing a discourse that displays their own arguments and
justifies their standpoint. The discourse that is used by both MSX and FAO could be considered the
more ‘Foucaultian’ discourse (Feindt & Oels, 2005); a discourse that comprises not only language but
also actions. MSX uses the ‘Corporate Social Responsibility’ discourse to advocate that it is not only
interested in gaining benefits from its mining activity, but that it is also cares for the environment,
health, safety and community development in both social and economic terms (Herman, 2010; Inc.,
66
2012). By claiming to provide jobs, education, healthcare and infrastructure to the local residents,
MSX tries to make it seem like they contribute to the development of the area. Yet to what extend
will these contributions stay after MSX leaves? Moreover, by focussing the attention on remediation
activities (reforestation, cleaning of old mining tailings) MSX tries to take attention away from the
new environmental damage it causes. The most obvious counter discourse comes from FAO. Part of
their discourse is the forging of alliances with international partners such as Greenpeace and Oxfam
Novib; as such FAO aims to operate at the same international level as their opponent, Newgold Inc.
(the Canadian mother company of MSX). This process is something that can be witnessed in
opposition groups throughout the world (e.g. Urkidi, 2010), and could be considered a result of the
glocalization that has taken place, and which forces small opposition groups to ally with larger,
international organizations, if they want to stand a chance in the international arena that
environmental issues have nowadays become.
Changes in land and water management practices could not always be traced back to MSX. The
particular history of Cerro de San Pedro has caused the majority of the people to leave the area after
the 1950s. Partly because of this exodus, and partly due to the harsh climatic conditions and poor
soils, the majority of the fields were no longer cultivated during the second half of the twentieth
century. Even though many people started working for MSX when the mine started (especially
inhabitants of La Zapatilla), the reduction in agricultural activity also has socio-economic and climatic
causes. Yet the fact that for the few remaining agriculturalists in the area, suddenly 373 ha of land
were no longer accessible for their cattle, is clearly linked to the presence of MSX. Also the changes
in landscape are caused by the current mining activity, and have profoundly changed the natural
drainage patterns of the area: rivers are blocked off, former ponds are no longer existent. This has
had impact for farmers as their cattle can no longer make use of these ponds. In addition, other
forms of making use of the landscape that were developed just before MSX arrived in 1996, such as
tourism, were impeded by the arrival of MSX and to date, have not been picked up. In this sense the
arrival of MSX has clearly had an effect on the management of the land and water in Cerro de San
Pedro.
The most valuable concepts used in this thesis are that of political ecology, discourse and power
relations, glocalization and legal pluralism. By looking at a conflict using these theoretical bodies, the
conflict can be analysed in a more profound manner, allowing one to see the ways in which a
conflicts are given shape, expressed, and eventually, handled. It allows to ask the question to which
extend are arguments actually ‘true’ (such as the claim that water is a ‘scarce’ resource), and to
which extend are they based on underlying political motivations and influenced by power relations?
This can be seen in the Cerro de San Pedro case when water was labelled scarce, yet without too
many troubles, MSX could obtain concessions for 1 million m3 water annually. Thus, the labelling of
water as a ‘scarce’ resource is a highly political one, for which exceptions can be made rather easily.
The way in which MSX is able to create its own knowledge by e.g. performing the soil, water and air
quality measurements further enhances MSX’s power position and makes up part of their discourse.
This clearly demonstrates how MSX has managed to set firm linkages between the tree elements of
the Foucault triangle: power, knowledge and truth. The aim of looking at the phenomena is not so
much to discover the ‘truth’, but rather to profoundly analyse words and actions, thus reducing
misunderstandings and, hopefully, preventing something is simply assumed to be true.
67
In conclusion, the changes in land and water rights in Cerro de San Pedro are the result of a complex
interplay between different stakeholders. The legal issues at the root of the conflict were enabled by
the Mexican government (local, state and national government), and MSX has cleverly used the
loopholes in the laws to reach its objectives. On top of that, international agreements such as NAFTA
have had a profound impact on the litigation process, questioning its ethics. The only real victim of
this interplay are the ejidatarios and inhabitants of Cerro de San Pedro that oppose the mine, and
who after MSX abandons operation, will be left without job possibilities, and a polluted environment.
68
References
Achterhuis, H., Boelens, R., & Zwarteveen, M. (2012). Water Property Relations and Modern Policy Regimes: Neoliberal Utopia and the Disempowerment of Collective Action. In R. Boelens, D. Getches & A. Guevara-Gil (Eds.), Out of the Mainstream. Water Rights, Politics and Identity. New York: Earthscan.
Alba, R. (2013). New waters or old boys network? Struggles around Water Utilities Privatisation in the Upper Arno Water District, Italy. (Thesis), Wageningen University.
Alvarado García, A. M. (2009). La Mineria Canadiense en México. Caso: Minera San Xavier en Cerro de San Pedro. Paper presented at the conference: "Replanteando la industria extractiva: regulación, despojo y reclamos emergentes. Marzo 5-7, 2009", Universidad de York, Toronto.
Assies, W. (2008). Land Tenure and Tenure Regimes in Mexico: An Overview. Journal of Agrarian Change, 8(1), 33-63.
Assies, W., & Duhau, E. (2009). Land tenure and tenure regies in Mexico: an overview. In J. M. Ubink, A. J. Hoekema & W. J. Assies (Eds.), Legalising Land Rights. Local Practices, State Responses and Tenure Security in Africa, Asia and Latin America. Leiden: Leiden University Press.
Bakker, K. (2005). Neoliberalizing Nature? Market Environmentalism in Water Supply in England and Wales. Annals of the Association of American Geographers, 95(3), 542-565.
Benda-Beckmann, K. v. (1981). Forum Shopping and Shopping Forums: Dispute Processing in Minangkabau Village. Journal of Legal Pluralism, 19, 117-159.
Blaiki, P. (1995). Understanding environmental issues. In S. Morse & M. Stocking (Eds.), People and Environment. London: UCL Press.
Boelens, R. (2008). The Rules of the Game and the Game of the Rules. Normalization and resistance in Andean water control. (PhD degree), Wageningen University, Wageningen.
Boelens, R. (2010). Water Rights Politics. In K. Wegerich & J. Warner (Eds.), The Politics of Water (pp. 161-183). London: Routledge.
Boelens, R., Gentes, I., Guevara-Gil, A., & Urteaga, P. (2005). Special Law: Recognition and Denial of Diversity in Andean Water Control. In D. Roth, R. Boelens & M. Zwarteveen (Eds.), Liquid Relations: Contested Water Rights and Legal Complexity. New Brunswick, state of New Jersey, USA: Rutgers University Press.
Boyd, S., & Cabellos, E. (Writers). (2010). The Devil Operation. Documentary Film. Partnership publishing between Peru and Canada.
Bricker, K. (2009). Chiapas Anti-Mining Organizer Murdered. Retrieved 8th of April, 2014, from http://narcosphere.narconews.com/notebook/kristin-bricker/2009/12/chiapas-anti-mining-organizer-murdered
Bryant, L. (1998). Power, knowledge and political ecology in the third world: a review. Progress in Physical Geography, 22(1), 79-99.
Business News Americas. (2013, 30th of October). Mexico's senate approves reforms including 7.5% mining tax. Retrieved from http://www.bnamericas.com/news/mining/mexicos-senate-approves-reforms-including-75-mining-tax
Cámara de Diputados. (2006). Ley Minera. Nueva ley publicada en el Diario Oficial de la Federación el 26 de junio de 1992. México D.F.
Cámara de Diputados. (2012). Ley Agraria. Nueva ley publicada en el Diario Oficial de la Federación el 26 de febrero de 1992. México D.F.
Carrillo-Rivera, J. J., Cardona, A., & Moss, D. (1996). Importance of the vertical component of groundwater flow: a hydrogeochemical approach in the valley of San Luis Potosi, Mexico. Journal of Hydrology, 185(1–4), 23-44.
Clark, T. (2003). Canadian mining companies in Latin America: Community rights and corporate responsibility. Paper presented at the conference organized by the centre for research on Latin America and the Caribbean at York University (CERLAC) and Mining Watch Canada on May 9 - 11, 2002, Toronto, Canada.
69
Collins Dictionary. (1995). Collins Dictionary of Sociology. Glasgow: Harper Collins Publishers. Conagua. (2004). Registro publico de derechos de agua. Retrieved 25th of March, 2014, from
http://www.conagua.gob.mx/Repda.aspx?n1=5&n2=37&n3=115 Conagua. (2012a). Vedas Superficiales. Retrieved 25th of March, 2014, from
http://www.conagua.gob.mx/ConsultaInformacion.aspx?n1=3&n2=63&n3=210&n0=1 Conagua. (2012b). Water Banks in Mexico. Mexico City: National Water Commission and the Ministry
of the Environment and Natural Resources. Conagua, Semarnat, & Gobierno Federal de los Estados Mexicanos. (1992). Ley de Aguas Nacionales y
su Reglamento. México D.F. Deloitte. (2012). Mining Industry in Mexico. from
http://www.deloitte.com.mx/documents/BoletinFactorChina/Mexico_mining_EN.pdf DIIS. (2006). Competing for water: Understanding conflict and cooperation in local water governance
– a comparative and collaborative research programme: Danish Institute for International Studies.
Dominguez, C. (2010). The Water is MINE! Negotiation and Resistance between Andean communities and the MINE. (Master thesis in International Development Studies), Wageningen University, Wageningen
Easter, W., Plusquellec, H., & Subramanian, A. (1998). Irrigation improvement strategy review: a review of bankwide experience based on selected 'new style' projects. Washington D.C., USA: World Bank.
Erickson, J. (2012). Volviendo al Agua de la Llave en México: Estrategias para Recuperar la Confianza en el Sistema de Agua Potable. PolicyMatters Journal.
Espinosa-Reyes, G., Torres Dosal, A., Ilizaliturri, C., González-Mille, D., Díaz-Barriga, F., & Mejía-Saavedra, J. (2010). Wild rodents (Dipodomys merriami) used as biomonitors in contaminated mining sites. Journal of Environmental Science and Health Part A, 45, 82-89.
Estrada, A. C., & Hofbauer, H. (2001). Impactos de la inversión minera canadiense en México: una primera aproximación. México D.F.: Fundar, Centro de Análisis e Investigación.
FAO. (2013). Website of FAO (Frente Amplio Opositor). Retrieved 9th of July, 2013 FAO. (2014a, 5th of April). Carta a Carmen Aristegui. Retrieved from http://faoantimsx.blogspot.mx/ FAO. (2014b, 20th of March). Cierre de MSX, posible maniobra para nueva fase de explotación: FAO.
Retrieved from http://faoantimsx.blogspot.nl/2014/03/cierre-de-msx-posible-maniobra-para.html
FCC Construcción. (2014). Acueducto El Realito. Retrieved 16th of August, 2014, from http://www.fccco.mx/mx/obras-singulares/obras-hidraulicas/acueducto-el-realito/index.html
Feindt, P. H., & Oels, A. (2005). Does discourse matter? Discourse analysis in environmental policy making. Journal of Environmental Policy & Planning, 7(3), 161-173.
Finkler, K. (1978). From Sharecroppers to Entrepreneurs: Peasant Household Production Strategies under the "Ejido" System of Mexico. Economic Development and Cultural Change, 27(1), 103-120.
Flores-Márquez, E. L., Kohn Ledesma, I., & Arango-Galván, C. (2011). Sustainable geohydrological model of San Luis Potosí aquifer, Mexico. Geofísica internacional, 50(4), 425-438.
Foucault, M. (1977). Discipline and Punishment: The Birth of the Prison. New York: Vintage Books. Furubotn, E. G., & Pejovich, S. (1972). Property rights and economic theory: a survey of recent
literature. Journal of Economic Literature, 10(4), 1137-1162. GAES Consultancy. (2007). Mexico - Mexican Market Profile Mining: Ontario Ministry of Economic
Development and Trade. General Direction of Mining Development. (2014). Companies with mining projects in Mexico.
México, D.F.: Retrieved from http://portalweb.sgm.gob.mx/economia/en/mexico-mining/mining-companies.html.
70
Gordoa, S. E. M. (2011). Conflictos socio-ambientales ocasionados por la minería de tajo a cielo abierto en Cerro de San Pedro, San Luis Potosí. (Licenciatura en Geografia), Universidad Autónoma de San Luis Potosí, San Luis Potosí
Guthman, J. (1997). Representing Crisis: The Theory of Himalayan Environmental Degradation and the Project of Development in Post-Rana Nepal. Development and Change, 28(1), 45-69.
Hall, S. (1992). The West and the rest: Discourse and power. In S. Hall & B. Gieben (Eds.), Formations of Modernity (pp. 275-331): Open University/Polity Press.
Herman, T. (2010). Extracting Consent or Engineering Support? An institutional ethnography of mining, “community support” and land acquisition in Cerro de San Pedro, Mexico. (Thesis), University of Victoria.
Herrera Pinedo, E. G. (2010). Federalismo y ámbitos de competencia en México. Estudio de caso de Minera San Xavier en Cerro de San Pedro, S.L.P., 1994-2009. (Maestra en Asuntos Políticos y Políticas Publicas), El Colegio de San Luis, San Luis Potosí.
Hidalgo Bastidas, J. P. (2009). Towards Water Justice. Water Rights Accumulation and Conflicts. The Tabacundo acequia case study. Ecuador. (Thesis), Wageningen University, Wageningen.
Hoogesteger van Dijk, J. D. (2004). "The Underground". Understanding the failure of institutional responses to reduce groundwater exploitation in Guanajuato. (Thesis), Wageningen University, Wageningen.
Inc., N. (2012). Mining Project in Cerro de San Pedro. Retrieved 19th of August, 2014, from http://www.newgold.com/properties/operations/cerro-san-pedro/default.aspx
INEGI. (2014). Mapa Digital de México. Retrieved 7th of July, 2014, from http://www.inegi.org.mx/geo/contenidos/mapadigital/
International Cyanide Management Institute. (2014). International Cyanide Management Code for the Gold Mining Industry. Retrieved 1st of May, 2014, from www.cyanidecode.org
Jasso-Pineda, Y., Díaz-Barriga, F., Calderón, J., Yáñez, L., Carrizales, L., & Pérez-Maldonado, I. N. (2011). DNA damage and decreased DNA repair in peripheral blood mononuclear cells in individuals exposed to arsenic and lead in a mining site. Biological Trace Elements Research, 146, 141-149.
Kass, S. L., & McCarrol, J. M. (2000). The 'Metalclad' Decision Under NAFTA's Chapter 11. New York Law Journal. Environmental Law.
Kosich, D. (2013, 9th of August). Mexican lawmakers approve 4% mining royalty tax. Retrieved from http://www.mineweb.com/mineweb/content/en/mineweb-political-economy?oid=186833&sn=Detail
Krueger, A. O. (1999). Trade creation and trade diversion under NAFTA: National Bureau of Economic Research.
La Jornada. (2009, 14th of November). Obligada, la Semarnat revoca permiso a Minera San Xavier, dossierpolitico.com. Retrieved from http://www.dossierpolitico.com/vernoticiasanteriores.php?artid=68217&relacion=dossierpolitico
Leahy, S. (2008, 28th of June). Environment: Mexicans Protest Canadian Mining Company, Inter Press Service News Agency. Retrieved from http://www.ipsnews.net/2008/06/environment-mexicans-protest-canadian-mining-company/
Lenntech. (2014). Water Treatment Solutions - Arsenic (As). Retrieved 17th of July, 2014, from http://www.lenntech.com/periodic/elements/as.htm
Lopez, E. (Cartographer). (1996). Proyecto de Dotacion de Ejidos a la Villa de Cerro de S. Pedro, municipio del mismo nombre, S.L.P.. Published by the Registro Agrario Nacional, México.
Lutz, D. ( 2010). Beware of the smell of bitter almonds. Newsroom. Retrieved 23rd of July, 2014, from http://news.wustl.edu/news/Pages/20916.aspx
Mann, H., & von Moltke, K. (1999). NAFTA's Chapter 11 and the Environment. Addressing the Impacts of the Investor-State Process on the Environment. Winnipeg, Manitoba, Canada: International Institute for Sustainable Development.
71
Martínez Chaves, P. A., Betancourt Mendieta, A., Nicolás Caretta, M., & Aguilar Robledo, M. (2010). Procesos históricos y ambientales en Cerro de San Pedro, San Luis Potosí, México, 1948-1997. Regíon y Sociedad, XXII(48).
Medrano, D. (2014, 18-03-2014). Alista cierre Minera San Xavier, issued 18-03-2014, El Exprés. Retrieved from http://elexpres.com/noticias/news-display.php?story_id=56948
Meinzen-Dick, R., & Nkonya, L. (2007). Understanding Legal Pluralism in Water and Land Rights: Lessons from Africa and Asia. In B. v. Koppen, M. Giordano & J. Butterworth (Eds.), Community-based Water Law and Water Resource Management Reform in Developing Countries: CAB International.
Meinzen-Dick, R., & Pradhan, R. (2002). CAPRi Working Paper no. 22. Legal pluralism and dynamic property rights. Washington: CGIAR Systemwide Program on Collective Action and Property Rights.
Momento Noticias. (2014, 19th of March). Cierra MSX porque no es redituable. Retrieved from http://www.momentonoticias.com/index.php/component/k2/item/6513-cierra-minera-san-xavier-en-cerro-de-san-pedro
Morales Moreno, I. (2005). Managing the Challenges of WTO Participation. Case Study 28. Mexico's Agricultural Trade Policies: International Commitment and Domestic Pressure: World Trade Organization.
Moran, R. E. (1998). MPC Issue Paper No. 1. Cyanide Uncertainties. Oberservations on the Chemistry, Toxicity and Analysis of Cyanide in Mining-Related Waters. In S. Brackett (Ed.). Washington D.C., USA: Mineral Policy Center.
New Gold Inc. (2012). Mining Project in Cerro de San Pedro. Retrieved 9th of July, 2013, from http://www.newgold.com/properties/operations/cerro-san-pedro/default.aspx
Newgold Inc. (2009). Manifesto de Impacto Ambiental. Modalidad regional unidad minera Cerro de San Pedro - Operación y desarrollo. Cerro de San Pedro, San Luis Potosí: Minera San Xavier S.A. de C.V.
Newgold Inc. (2010). Reporte de Sustentabilidad 2010. Cerro de San Pedro: Minera San Xavier. Newgold Inc. (2011). Reporte de Sustentabilidad 2011. Cerro de San Pedro: Minera San Xavier. Newgold Inc. (2012a). Fase V de la unidad minera Cerro de San Pedro – Proyecto de optimizacion de
la operación, consolidacion de reservas y cierre. Manifestación de impacto ambiental. Modalidad particular. Cerro de San Pedro: Newgold Inc., Minera San Xavier S.A. de C.V.
Newgold Inc. (2012b). Reporte de Sustentabilidad 2012. Cerro de San Pedro. Newgold Inc. (2012c). Website of Newgold Inc. on Corporate Responsibility. 29th of April 2014, from
http://www.newgold.com/corporate-responsibility/default.aspx Nogales. (2002). The NAFTA Environmental Framework, Chapter 11 Investment Provisions, and the
Environment. Annual Survey of International & Comparative Law, 8(1, Article 6). Ochoa, E. (2006). Canadian Mining Operations in Mexico. In L. North, T. D. Clark & V. Patroni (Eds.),
Community rights and corporate responsibility: Canadian mining and oil companies in Latin America (pp. 143-160). Toronto: Between the Lines.
OCMAL. (2014). Conflictos Mineros en México. Retrieved 18th of April, 2014, from www.ocmal.com PBI. (2011). Undermining the Land. The defense of community rights and the environment in Mexico
Mexico Project Newsletter: Peaces Brigades Internacional. Mexico project. Peña, F., & Herrera, E. (2008a). El litigio de Minera San Xavier: una cronología. In M. C. Costero
Garbarino (Ed.), Internacionalización económica, historia y conflicto ambiental en la minería. El caso de Minera San Xavier. San Luis Potosí: El Colegio de San Luis.
Peña, F., & Herrera, E. (2008b). Vocaciones y riesgos de un territorio en litigio. Actores, representaciones sociales y argumentos frente a la Minera San Xavier. In M. C. Costero Garbarino (Ed.), Internacionalización económica, historia y conflicto ambiental en la minería. El caso de Minera San Xavier. San Luis Potosí: El Colegio de San Luis.
Quintana, V. M. (2014, 7th of February, 2014). How NAFTA unleashed the violence in Mexico, Americas Program. Retrieved from http://www.cipamericas.org/archives/11427
Rabinow, P. (1991). The Foulcault Reader: An introduction to Foulcault’s thought. London: Penguin.
72
Ramirez, M. D. (2003). Mexico under NAFTA: a critical assessment. The Quarterly Review of Economics and Finance, 43(5), 863-892.
Reygadas, P., & Reyna Jiménez, O. F. (2008). La batalla por San Luis: ¿El agua o el oro? La disputa argumentativa contra la Minera San Xavier. Estudios demograficos y urbanos, 23(2 (68)), 299-331.
Reyna Jiménez, O. F. (2009). Oro por cianuro: Arenas políticas y conflicto socioambiental en el caso Minera San Xavier en Cerro de San Pedro. (Thesis), El Colegio de San Luis, San Luis Potosí, S.L.P., México.
Rodriguez, M. (2014, 28th of May 2014). Detectan altos niveles de plomo y arsénico en habitantes de Cerro de San Pedro, Newspaper article, Pulso, Diario de San Luis. Retrieved from http://pulsoslp.com.mx/2014/05/28/detectan-altos-niveles-de-plomo-y-arsenico-en-habitantes-de-cerro-de-san-pedro/
Sandt, J. v. d. (2009). Mining Conflicts and Indigenous Peoples in Guatemala. The Hague: Cordaid. Santacruz de Leon, G. (2008). La minería de oro como problema ambiental: el caso de Minera San
Xavier. In M. C. Costero Garbarino (Ed.), Internacionalización económica, hierstoia y conficto ambiental en la minería. El caso de Minera San Xavier. San Luis Potosí, S.L.P., México: El Colegio de San Luis.
Stoltenborg, D. (2014). Consequences of the North American Free Trade Agreement for the sustainability of Mexico’s domestic maize production. (Unpublished work) Wageningen University and Research Center. Wageningen.
Studnicki-Gizbert, D., & Schecter, D. (2010). The Environmental Dynamics of a Colonial Fuel-Rush: Silver Mining and Deforestation in New Spain, 1522 to 1810. Environmental History, 15(1), 94-119.
Swyngedouw, E. (2004). Globalisation or ‘Glocalisation’? Networks, Territories and Rescaling. Cambridge Review of International Affairs, 17(1).
Swyngedouw, E. (2005). Dispossessing H2O: The contested terrain of water privatization. Capitalism, Nature, Socialism, 16(1), 81-98.
Urkidi, L. (2010). A glocal environmental movement against gold mining: Pascua-Lama in Chile. Ecological Economics, 70, 219-227.
Vargaz-Hernandez, J. G. (2006). Cooperacion y conflicto entre empresas, comunidades, nuevos movimientos sociales y el papel del gobierno. El caso de Cerro de San Pedro.
Warner, J., & Moreyra, A. (2004). Conflictos y participación: uso multiple del agua: Nordan Comunidad.
Wilder, M. (2010). Water Governance in Mexico: Political and Economic Apertures and a Shifting State-Citizen Relationship. Ecology and Society, 15(2), 22.
Wilder, M., & Romero Lankao, P. (2006). Paradoxes of Decentralization: Water Reform and Social Implications in Mexico. World Development, 34(11), 1977-1995.
Wong-Chong, G. M., Dzombak, D. A., & Ghosh, R. S. (2006). Introduction. In G. M. Wong-Chong, D. A. Dzombak & R. S. Ghosh (Eds.), Cyanide in water and soil. Chemistry, Risk, and Management. Florida, USA: CRC Press.
World Gold Council. (2014). Gold Mining. Responsible Mining. Accessed on May 1st, 2014, from www.gold.org
Zwarteveen, M., Roth, D., & Boelens, R. (2005). Water Rights and Legal Pluralism. Beyond Analysis and Recognition. In D. Roth, R. Boelens & M. Zwarteveen (Eds.), Liquid Relations. Contested Water Rights and Legal Complexity. London: Rutgers University Press.
a
Annexes
b
Annex 1. Map of the open pit mine in Cerro de San Pedro
Source: New Gold Inc. (2012)
c
Annex 2. Overview of institutions responsible for granting permits
Government
level
Institution Permits*
Fed
era
l in
stit
uti
on
s/d
ele
gate
s in
th
e s
tate
Secretary of Environment and Natural
Resources (Semarnat)
National Institute for Ecology (INE)
Secretary of Ecology and Environmental
Management (SEGAM)
- Environmental permit for operation, subordinate to
100 contingent points
- Environmental Impact Assessment
- Risk study
- Water use permit
Civil Protection
National Institute of Anthropology and History
(San Luis Potosí department)
- Monitoring and authorization prior to explosion
blasting
- Taking care of the patrimonial heritage in Cerro de
San Pedro
Mining Division of the Ministry of Economy Issuing of the temporary occupancy permit the land of
the ejido of Cerro de San Pedro
Federal Court of Fiscal and Administrative
Justice
Court ruling concerning the conditional operation
permit
Secretary of National Defense License for the purchase, storage and use of
explosives
Stat
e in
stit
uti
on
s
Ministry of Urban Development, Housing and
Public Works
Governor of the State of San Luis Potosí
In particular concerned with the permit for the land use
change and acquisition of permits for water use
Agrarian Tribunal Involved in different processes for the access to ejido
land
INTERAPAS
National Water Commission (state delegate)
- Transfer of rights to use water
- Acquisition of water permits
Government of San Luis Potosi
Urban plan for the city of San Luis Potosi and its
metropolitan area, including the municipalities of San
Luis Potosí, Soledad de Graciano Sánchez, Mexquitic of
Carmona, Cerro de San Pedro and Villa de Zaragoza
Twelfth SEDENA military area in San Luis
Potosi (SEDENA: Secretary of National Defence
– Secretaría de la Defensa Nacional)
Authorization of the license for the purchase, storage
and use of explosives
Civil society groups such as Pro San Luis
Ecológico, and other groups bonded in the
Broad Opposition Front against Minera San
Xavier (FAO)
The task of participating in the public consultation of the
project MSX wanted to execute. This was required by
the General Law of Ecological Balance and
Environmental Protection, after issuance of the
operation permit contingent upon 100 conditions.
Mu
nic
ipal
inst
itu
tio
ns
Municipal population Field observation to check whether the condition
number 12 of the conditional permit was fulfilled, which
is linked to the environmental operation permit.
Council and mayor of Cerro de San Pedro Building permits
Council and mayor of Soledad de Graciano
Sánchez.
Rent of horticultural land belonging to the ejido Palma
de la Cruz, in order to establish a waste dump.
Ministry of National Defense, with the
approval of the municipality
- Permit for the use, purchase and storage of explosives
and the deposit of waste generated by mining activity
- Permission to carry out blasts in Cerro de San Pedro.
Population of the municipality of Cerro San
Pedro
- Authorization for blasting
- Consent to the environmental permit condition 12
* Some permits are issued by several governmental layers, and/or are subject to approval of the local population.
Translated from Herrera Pinedo (2010; p.38)
d
Annex 3. Aerial photo of Cerro de San Pedro and surroundings (1969)
Cerro de San Pedro N
e
Annex 4. Map of the ejido Cerro de San Pedro
Source: Registro Agrario Nacional, San Luis Potosí, Mexico (Lopez, 1996).
f
Annex 5. Arguments used in MSX’s discourse
Main issues that have been touched upon during the media campaign of MSX: 1) the use of cyanide
and possible contamination of the aquifer; 2) water use; 3) land use; 4) dust pollution; 5) explosives
use; 6) impact to flora and fauna, 7) sustainable community development and 8) opposition groups.
MSX has tried to eliminate concerns over these topics by launching a large (media) campaign that
started before the operation phase of MSX began.
Table 1. Overview of (some of the) the arguments used by MSX.
Area of concern Arguments used by MSX to counteract concerns
Cyanide use and aquifer contamination
“In the construction of the mining infrastructure all possible precautions have been taken to avoid cyanide leakages or spills, according to Mexican environmental law. This includes the construction of double, impermeable layers under the lixiviation area and pools and double-layered pipelines for the transport of cyanide” (Reyna Jiménez, 2009, p. 56). MSX claims that the environmental impacts will be minimal due to their operation strategy, regular check-ups by the Mexican authorities such as SEMARNAT and PROFEPA (Proceduría Federal de Protección al Ambiente), and their own monitoring systems of water, air and soil. “The process is entirely safe.” (Information and quote taken from an interview with an engineer working for MSX, September 2013) “We are voluntarily involved in the International Cyanide Management Code
31 and are in the
process of obtaining the title ‘Clean Industry’ linked to the cyanide use, from PROFEPA (in 2012 not yet obtained). We continue executing important projects to show our commitment to sustainable development and to obtain this title as soon as possible” (Newgold Inc., 2012b, p. 7). “When the mine stops operating, we will ‘wash’ the lixiviation area with either water or a biodegradable detergent, to neutralize the residual cyanide in the pile. In this way we will obtain an entirely sterile heap, meeting all international standards, and it will be ready for re-vegetation” (Reyna Jiménez, 2009, p. 56).
Water use “The 12 water concessions, in total amounting 1,370,234 m3, were granted to us by the
National Water Committee.” (Newgold Inc., 2009) “MSX has obtained the required water concessions, but as we realize that water scarcity is a major issue in San Luis Potosí, we have decided to incorporate the use of treated water where possible, as such alleviating pressure on the aquifer. The reused water will be applied on the roads, to prevent dust pollution, and for irrigation purposes in the nursery. We will upscale the treated water use from 15 l/s to 33 l/s in 1999” (Newgold Inc., 2009; Reyna Jiménez, 2009). “In 2009 the most important source of water use was the donation of water to the surrounding communities during the dry season” (Newgold Inc., 2009, pp. II-128) “An important project of which we are studying the feasibility is the application of treated water in the lixiviation process, for which we have started a pilot project. The pilot study is still ongoing; dependent on the outcomes we will take this to a larger scale. That is part of how MSX is trying to reduce the water requirement.” (Quote taken from an interview held
31
“The ‘International Cyanide Management Code For the Manufacture, Transport, and Use of Cyanide In the Production of Gold’ (Code) was developed by a multi-stakeholder Steering Committee under the guidance of the United Nations Environmental Program (UNEP) and the then- International Council on Metals and the Environment (ICME). The Code is an industry voluntary program for gold mining companies. It focuses exclusively on the safe management of cyanide and cyanidation mill tailings and leach solutions. Companies that adopt the Code must have their mining operations that use cyanide to recover gold audited by an independent third party to determine the status of Code implementation. Those operations that meet the Code requirements can be certified. A unique trademark symbol can then be utilized by the certified operation. Audit results are made public to inform stakeholders of the status of cyanide management practices at the certified operation.” Retrieved from the webpage of the International Cyanide Management Institute (2014).
g
with representatives of MSX, November 2013, and confirmed in (Newgold Inc., 2012b) “Yes, the company uses a lot of water, just like any other industry here in San Luis Potosí does. I don’t see the difference.” (Quote taken from an interview with Ing. Javier Castro Larragoita, professor at the Engineering Faculty of the Universidad Autónoma de San Luis Potosí, November 2013).
Land use “Minera San Xavier obtained on the 5th
of August of the past year [2010] a renewed authorization for the environmental impact, granted by SEMARNAT, which confirms the solidity of the mining unit. The company is functioning conform all environmental laws and regulations. After a difficult start, MSX is now in a good condition to continue its operation in a sustainable manner” (Newgold Inc., 2010, p. 4) “Indeed, Minera San Xavier has always operated under an environmental authorization. The company categorically reiterates that it operates conform with all laws and regulations concerning the environment, mining and the municipality.” (Newgold Inc., 2011, p. 4) “In 2012, we have had only one case of dissatisfaction with our stakeholders. The Ejido of Cerro de San Pedro filed a petition to agricultural authorities on the temporary occupancy agreement on the use of topsoil by the company. Finally, in November 2012 a new comprehensive contract with the ejido was signed, thanks to a successful negotiation that completely closed the dispute.” (Newgold Inc., 2012b, p. 30)
Dust pollution “We apply treated water to the dirt roads, as such to prevent excessive dust pollution” (Newgold Inc., 2012b) “Our monitoring systems of the air and water pollution do not indicate that the maximum allowed levels are exceeded.” (Quote taken from an interview held with representatives of MSX, November 2013) “The dust pollution has not reached levels in which they inhabit plant growth. Moreover there is hardly any agriculture around the mine”. (Quote taken from an interview held with representatives of MSX, November 2013)
Explosives use “The blasting of the explosives to obtain the minerals produces increased levels of noise and vibrations, however these are located exclusively in the open pit area.” (Newgold Inc., 2009, pp. II-136)
Impact on flora and fauna Our Comprehensive Environmental Management Plan contains the following objectives (Newgold Inc., 2012b, p. 31):
- Design, construct, operate and close our processes minimizing the risks for the biodiversity;
- Reforest 373 ha in zones located closely to the mining area; - To produce or obtain at least 110 000 cacti of five different protected species, or
those that are likely to be used during the restoration phase. - The rescue and relocation of three endangered cacti species, to be replanted after
the closure of the mine (MSX has a nursery in which they grow and maintain these cacti, to be used for re-vegetation purposes after closure of the mine).
“Every year we organize a tree-planting event with the inhabitants of the communities, during which the people can experience what MSX does to contribute to development of the area. Year round, we have contracted about 20 persons from the local communities that are doing the reforestation. This year only, we have reforested about 80 hectares.” (Quote taken from an interview held with representatives of MSX, November 2013)
Community development “When possible, we will provide job opportunities to whoever lives in the affected communities and wants to work in our company. At the moment, more than 50% of our direct employees come from the surrounding communities” (source: interview with MSX representatives, November 2013 and Newgold Inc. (2012c) “MSX has brought the inhabitants a lot of progress: we have helped them with the construction of infrastructure, provision of education, health care, housing. Moreover, we support the development of alternative income sources such as nopal-nurseries, fish farms and the supply of microcredits for entrepreneurial initiatives such as a sewing workshop, in order to enable the people to sustain themselves after MSX leaves” (source: interview with
h
MSX representatives, November 2013 and Newgold Inc. (2012c). “As a member of the World Gold Council, an important challenge is to comply with the Conflict-Free Gold Standard
32, a task that we have labelled a priority” (Newgold Inc., 2012b,
p. 7; World Gold Council, 2014). “In 2012, the Cemefi (Centro Mexicano para la Filantropía – Mexican Centre for the Philantrophy) has acknowledged MSX as “Socially Responsible Company” (“Empresa Socialmente Responsable”) for the third consecutive year” (Newgold Inc., 2012b, p. 8).
Opposition groups Branding of the opposition groups as radical and irrational. Divide-and-rule strategy amongst villagers to reduce the power of united opposition.
32
“Gold produced in conformance with the Conflict-Free Gold Standard will provide confidence that it has been extracted in
a manner that does not cause, support or benefit unlawful armed conflict or contribute to serious human rights abuses or breaches of international humanitarian law.” Retrieved from the World Gold Council (2014).
