Last March 2023, two jurisprudential criteria were published by the Supreme Court of Justice of the Nation of our country, which explain the provisions of Convention 169 on Indigenous and Tribal Peoples in Independent Countries, which has been ratified by Mexico, and in relation to the government’s duty to guarantee indigenous peoples their participation in the process of state decisions that affect them, through what is called Prior Consultation.
In this sense, through Jurisprudence 2a./J. 10/2023 (11th.), the Supreme Court determined that, as part of these state decisions, there are environmental evaluations and authorizations, such as the Environmental Impact Statements and the presentation of Preventive Reports, which must be carried out in connection with projects or works that may impact the environment or way of life of indigenous peoples and communities; the foregoing, notwithstanding that such evaluations and authorizations do not directly and immediately deprive such peoples and communities, since the mere possibility of affecting them makes it necessary that they be consulted in advance.
In this understanding is the text of the second Jurisprudence to which we allude, the 2a./J. 11/2023, since through it the Supreme Court determined that the obligation of the State to carry out the Prior Consultation is generated by the mere possibility of affecting the indigenous peoples and communities, without requiring them to prove any significant damage or impact, since this State obligation does not depend on the demonstration of a real affectation to their rights.
This is explained by the fact that the Supreme Court has even ordered this type of consultation when there are possible benefits for indigenous peoples and communities, which is also part of the objective of Prior Consultation.
This is because we must not lose sight of the fact that, through this type of consultation, the aim is to determine whether it is sufficient to consider the opinions of the indigenous community or, on the contrary, whether it is necessary to obtain their consent.
It is important to highlight that the Supreme Court has even determined that the requirement of such consent does not give the indigenous peoples and communities a veto power, but rather what is sought through the Prior Consultation is to achieve the consensus of all interested parties.
The case decisions of reference can be found in the following links of the Semanario Judicial de la Federación:
https://sjf2.scjn.gob.mx/detalle/tesis/2026053
https://sjf2.scjn.gob.mx/detalle/tesis/2026054
Prepared by: Mr. David Almeida Madrid
