MEXICO RESOLVING CONFLICTS BETWEEN SURFACE OWNERS AND MINERS IN LATIN AMERICA (ENGLISH VERSION)
| Jurisdiction | United States |
(2001)
MEXICO RESOLVING CONFLICTS BETWEEN SURFACE OWNERS AND MINERS IN LATIN AMERICA (ENGLISH VERSION)
Miranda, Estavillo, Staines y Pizarro-Suárez, S.C.
Mexico City, Mexico
[Page 16A-1]
I. INTRODUCTION
In order to clearly understand the subject related to the conflicts that may arise between the surface owners and the holders of mining concessions located within the Mexican United States (Mexico), first it is necessary to understand the reasons why, according to Mexican Law, the mining concession itself does not grant to its holder any right over the surface land where the concession is located and, in the opposite manner, why the ownership itself of a real estate property does not grant to the owner the right to explore nor to exploit the mineral resources which may exist therein.
In our experience, it is fairly common that mining companies working in Mexico — mainly those with foreign investment and operations abroad- face problems with the surface owners, who feel their property trespassed by the miner and impair free access to the ground and thus the possibility to work.
Throughout this paper, we shall first review the constitutional principles being relevant for these purposes and the specific concepts regulated by the special law, in this case the Mining Law, to focus ourselves on the rights granted by the mining concessions to their holders with respect to the surface land; also mentioning the main characteristics of each of the legal mechanisms that the Mining Law offers to the miners, in order to get access, possession, occupation and even the ownership of a surface land which might be considered essential for the performance of the mining works. We will also make reference to some procedural aspects, and shall make special emphasis on the particular issues that must be taken into account when the surface to be affected belongs to anejido or agrarian community which, in simple words, we may say that are forms of association of individuals engaged in agricultural or other activities of a rural nature, and to which the federal government has previously assigned certain portions of land for their own settlement and to carry out said activities and for the use and disposition of the products generated by virtue of such activities.
Finally, considering the importance of the freedom existing under the Mexican laws, in order for the miners and the surface owners to freely negotiate and agree on the terms and conditions under which the miners might obtain access, possession, occupation and even the ownership of surface land, we shall also make brief comments on said advantageous alternative.
[Page 16A-2]
II. CONSTITUTIONAL ASPECTS
It is of the utmost importance to differentiate the principles under which the Political Constitution of the Mexican United States acknowledges, on the one hand, the source from which the private property over the surface land arises and, on the other hand, the exclusive right of the Mexican government to concede rights for the exploitation, use and utilization of the mineral resources located within the Mexican territory.
Having said the above, the first two paragraphs of article 27 of the Constitution set forth the following:
Art. 27. Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transfer title thereof to private persons, thereby constituting private property.
Private property shall not be expropriated except for reasons of public interest and subject to payment of indemnity.
This principle, that remains in effect in Mexico since the Viceroy Mendoza's code and is characteristic of the Civil Law countries, such as the Mexican legal system, recognizes the so called "origin ownership" corresponding to the Nation, with respect to all the lands and waters located within the Mexican territory and, therefore, it must be understood that being the Nation the original owner of said assets (goods), it is only when the Mexican Nation transfers title thereof to private persons, that "private property" appears.
Likewise, the third paragraph of same article 27 of the Constitution, in its relevant part for the purposes of this document, states that:
The Nation shall at all times have the right to impose on private property such limitations as the public interest may demand, as well as the right to regulate, for the benefit of the society, the utilization of natural resources susceptible of appropriation...
From this other Constitutional principle, we find two important issues; first, the authority granted to the Mexican Nation — through the Mexican government — to impose certain limitations on the private property in order to protect the public interest, which must be understood as the interest of the community and of the Nation itself which will always be superior to the private interests; therefore, being the mining activities considered as of public nature and public policy, and having preferential rights over any other use or utilization of the land,1 the Mexican State may validly affect the private property, as mentioned below, in order to establish in this case a mining industry, considering that such creates various benefits to the community where the industry is established; and second, from this same principle — interpreted together with that stated in the fourth paragraph of same article 27 of the Constitution — appears the right of the Mexican State represented by
[Page 16A-3]
the Federal Government to regulate — as it has done — the utilization of the elements and natural resources different from the components of the ground.
In line with the above, the same concept of differentiation between private property and the use and utilization of natural resources such as mineral resources is complemented by that stated in the fourth and sixth paragraphs of same article 27 of the Constitution, which relevant parts set forth the following:
It corresponds to the Nation, the direct domain of all natural resources of the continental platform and submarine shelves of the islands; of all minerals or substances which in veins, layers, masses or beds constitute deposits whose nature is different from the components of the ground, such as the minerals from which metals and metalloids used in industry are extracted; the deposits of precious stones, rock salt and the salines formed directly by marine waters; the products derived from the decomposition of the rocks, when their exploitation requires under ground works; the mineral or organic deposits of materials capable of being utilized as fertilizers;...
...the domain of the Nation is inalienable and imprescriptible, and the exploitation, the use or utilization of the resources concerned (minerals), by individuals or entities organized in accordance with Mexican laws may only be carried out by means of concessions granted by the Federal Executive in accordance with the rules and conditions set forth in the laws. The legal provisions relative to works of exploitation of the minerals and substances to which paragraph four refers, shall regulate the execution and proof of works carried out or to be carried out from their effective date, independently of the date of issuance of the concessions, and the non-observance thereof shall cause their cancellation..."
As a conclusion of that mentioned in this section, we can say that there is a clear constitutional differentiation between: (i) the surface land (ground), which may constitute private property when title has been transferred to private persons either individuals or legal entities; and, (ii) the right to use, utilize and dispose of mineral resources located within the Mexican territory, which may only be carried out through the granting of concessions, by means of which the Mexican government authorizes individuals or private legal entities for such purposes.
Deriving from the foregoing, it is important to understand that a land owner does not only own the surface of his property, but also owns — with some limitations — the upper space rights and, in principle, the underground2 as long as no minerals or substances different from the components of the ground exist, given that, in case such minerals or substances so exist, they shall belong to the Mexican Nation, which is the only authorized to grant, through the Executive Federal Power, one or more concessions for its exploration and exploitation.
[Page 16A-4]
In view of that indicated above, the exploration, exploitation and beneficiation of minerals or substances in veins, layers, masses or beds which constitute deposits of a nature different to those of the components of the ground, are subject to the concession regime established in article 27 of the Constitution. The Mining Law regulates article 27 of the Constitution in the area of mining and is considered public policy and is applicable in all of the Mexican United States.
III. GENERAL CONCEPT OF CONCESSION AND OF MINING CONCESSION
The concession is a unilateral administrative act, whereby the performance of a specific activity is authorized and shall be carried out under particular rules or over public assets. By means of a concession, certain rights are exercised during a certain period of time by an individual or a private legal entity, prevailing the general interests over the private interests. Such prevailing interest is of an economic nature.3
Upon granting a concession, the government is no longer concerned for the carrying out of such activities, that will be performed by individuals or private legal entities...
To continue reading
Request your trial