- Reforms in a hurry. They forgot the transitional provisions!, which will bring a shower of injunctions.
- The government, without resources for the exploration, exploitation and use of minerals.
CDMX. April 29, 2022. Mariano Calderon, expert partner in constitutional matters at the law firm Santamarina and Steta He pointed out that the reforms to the Mining Law are intended to create a State monopoly on lithium and cancel the participation of private investment in the entire value chain for the exploitation of this and other minerals.“They obey the same dogma of the constitutional reform initiative on energy matters that did not obtain a majority in Congress. Thus, they will stop granting concessions or permits if the mineral is considered strategic. The problem is that this dogma incurs a serious constitutional flaw and the federal government does not have the money or the knowledge to exploit it. Not even to create the institute that it intends to create,” said.
The expert explained that both the president and the legislative majority that promoted the reforms to the Mining Law did not analyze their scope in depth and - incredibly - forgot to establish transitional provisions, which leaves all the concessions granted and in force to date in complete uncertainty, which will surely be defended through injunctions, given that they have already acquired rights that will be affected by the approved text. "Of course, this can be considered unconstitutional and those people who are affected by the legal reform can resort to amparo proceedings or investment arbitration under trade treaties," reported.
Mariano Calderón added that the doctrine or principle that no type of private investment can participate in the mineral value chain goes against what the country requires, which are investments, business opportunities and employment for Mexicans. Not a bureaucracy that can now cancel entire sectors of the mining industry at its discretion. In exchange, it promotes establishing a State monopoly that will not have opportunities to enter or compete in the lithium market.
“It is also based on an error of origin and a serious constitutional flaw due to this ideology, given that the same constitutional article 27 has always established that the domain of the lands, waters and all the minerals in the subsoil belong to the nation and that it will be up to the State to see to their best use, through assignments or concessions. What the initiative is doing is excluding lithium from the scope of private investment. Now the federal government will have to allocate budgets to create a new organization, to give it resources so that it even begins to function. Not to mention to invest in the exploration, exploitation and use of the mineral. Given the scarcity of resources and the national and international economic challenges that we are experiencing, we are practically burying lithium for many years.”He said.
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