The Mining Law Review: Mexico
Mexico was the largest producer of silver in the world during 2020 and continues to be an attractive mining destination for foreign investors during 2021 despite the economic impact of the covid-19 pandemic and changes to the Federal Labour Law, preventing outsourcing in Mexico. Silver is produced by Mexico's primary and secondary silver mines as a by-product of base metal and gold operations. According to the World Bank, Mexico is the second largest and most competitive economy in Latin America.
Mexico has a history of mining going back more than 500 years. The attitude of the government to any mining project generally depends on the area in which it might be located; in the northern and central parts of Mexico, the mining industry is in general terms very well established, whereas there is less activity in the south.
Exploration for mineral resources involves a high degree of risk. The cost of conducting exploration programmes may be substantial and the likelihood of success is difficult to assess. The prices of metals greatly affect the value of mining companies and the potential value of their properties and investments, which in Mexico are generally dependent on the equity markets as their sole source of operating capital.
II LEGAL FRAMEWORK
On 28 April 2005, Mexico's Mining Law was amended to simplify the regulation of mining concessions through the merging of the exploration and exploitation regimes into one single regime; this amendment came into full force and effect on 1 January 2006.
A mining concession is an authorisation granted by the federal government. It is a unilateral administrative act whereby a specific activity is authorised to be carried out under particular rules or over public assets. By means of a concession, certain rights may be exercised during a specified period by an individual or a private legal entity. The general economic interests of Mexico prevail over the private interests of any individual or private legal entity.2
Upon the granting of a concession, the government is no longer involved in the carrying out of the granted activity, which will be performed by an individual or a private legal entity. The main activity that the government performs with respect to granted concessions is to verify that the concessionaire complies with the obligations set out in the respective laws.
By means of a mining concession, the Federal Executive (through the Ministry of Economy) confers the right to explore, exploit and process allowable minerals or other substances located within an allotted area to either: (1) the first applicant with respect to a specific plot of land; or (2) in a public bidding procedure, the best offeror with respect to land covered by cancelled allotments or by mineral reserves that have been disincorporated.
A mining concession may be revoked or cancelled by the government in the case of non-compliance with the obligations set out in the applicable legal provisions.
Mining concessions have a term of 50 years from the date on which the relevant title is recorded in the Public Registry of Mining.
The Constitution acknowledges, on the one hand, the source from which private property over surface land arises, and on the other, the exclusive right of the government to concede rights for the exploitation, use and utilisation of mineral resources located within Mexican territory. Article 27 of the Constitution sets out the following:
- 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; and
- private property shall not be expropriated except for reasons of public interest and subject to payment of an indemnity.
Therefore, the nation is the original owner of all the lands and waters located within Mexican territory, and it is only when the nation transfers title thereof to private persons that 'private property' appears.
The third paragraph of Article 27 of the Constitution states: '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 society, the utilisation of natural resources susceptible of appropriation'.
As such, the nation may impose certain limitations on private property to protect the public interest, which will always take precedence over private interests. Therefore, if mining activities are considered to be matters of a public nature and of public policy, and as having preferential rights over almost any other use or utilisation of the land3 (not including exploration or exploitation of hydrocarbons and distribution of electric energy),4 the state may validly establish any mining activity on private property, in consideration that various benefits for the community are created where the industry is established. The state (represented by the federal government) also has the right to regulate the utilisation of mineral elements and resources of a nature different from those of the components of the ground.
Article 27 of the Constitution also sets out the concept of differentiation between private property, and the use and utilisation of natural resources such as mineral resources:
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 underground works; the mineral or organic deposits of materials capable of being utilised as fertilisers [. . .]
[T]he domain of the Nation is inalienable and imprescriptible, and the exploitation, the use or utilisation of the resources concerned (minerals), by individuals or entities organised 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 out 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.
There is a clear constitutional differentiation between:
- surface land (ground) that may constitute private property when title has been transferred to private persons (either individuals or legal entities); and
- the right to use, utilise and dispose of mineral resources located within the Mexican territory, which may only be carried out by individuals or private legal entities through the granting of concessions for such purposes by the Mexican government.
As such, a landowner owns not only the surface of its property, but also (with some limitations), in principle, the matter located under the land,5 as long as no minerals or substances different from the components of the ground exist. In cases where such minerals or substances exist, they belong to the nation, which alone is authorised to grant one or more concessions for their exploration and exploitation. In view of this, the exploration, exploitation and beneficiation of minerals or substances in veins, layers, masses or beds that constitute deposits of a nature different from 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 applicable throughout Mexico.
While the Mining Law is the key legislation governing mining activities in Mexico, other relevant legislation includes:
- the Regulations to the Mining Law (published in the Official Journal of the Federation on 2 February 1999);
- the Federal Law of Waters (published in the Official Journal of the Federation on 1 December 1992);
- the Federal Labour Law (published in the Official Journal of the Federation on 1 April 1970);
- the Federal Law of Fire Arms and Explosives (published in the Official Journal of the Federation on 11 January 1972);
- the General Law on Ecological Balance and Environmental Protection (published in the Official Journal of the Federation on 28 January 1988) and relevant Regulations;
- the Federal Law on Metrology and Standards (published in the Official Journal of the Federation on 1 July 1992); and
- the Federal Law of Environmental Responsibilities (published in the Official Journal of the Federation on 7 June 2013).
Only the federal government is authorised to carry out exploration and exploitation of any radioactive mineral that may be found in Mexican territory.
There is no limit to the participation of foreign investment in the Mexican mining industry. Foreign investors may participate in 100 per cent of the capital stock of Mexican mining companies without the obligation to comply with any formalities other than those relevant for incorporating a company in Mexico.
III MINING RIGHTS AND REQUIRED LICENCES AND PERMITS
Under Mexican law, mineral resources belong to the nation, and a mining concession grants rights to mine rather than rights over the surface land where the concession is located.
A party wishing to apply for a concession must first verify that the concession is not located within a conservation area that is subject to special environmental authorisations. An application for a concession must be filed with the mining agency or mining delegation closest to the area to which the mining application relates. Once an application has been filed, the applicant and its mining expert may enter the land where the concession is located to carry out surveys and other exploratory work. These works must be filed with the relevant mining authorities within 60 calendar days of the date of the application.
In certain very specific cases, mining concessions may also be granted through public auctions.
As from 12 August 2014, for the issuance of titles of mining concessions, the Ministry of Economy must obtain from the competent authorities in the area of hydrocarbons information to verify if within the area covered by the application of the mining concession, any activity of exploration and extraction of petroleum and other hydrocarbons or of public service of transmission and distribution of electric energy is carried out.
Should any of the above-mentioned activities exist, then the Ministry of Energy must carry out a technical study to determine the possibility of the coexistence of activities and thereafter may grant, modify or deny the mining concession.
Based on the technical study, the ministries of Economy and of Energy will (should such be the case) establish the respective rules for both activities to coexist.6
ii Surface and mining rights
Mining concessions may only be granted to Mexican individuals domiciled in Mexico, or companies incorporated and validly existing under the laws of Mexico whose objects are the exploration and exploitation of minerals.
Holders of mining concessions must comply with various obligations, including the payment of certain mining duties (mining taxes) calculated per concession based on the number of hectares of the concession and the number of years the concession has been in effect. Failure to pay the mining duties may lead to cancellation of the concession.
Holders of mining concessions must carry out and provide proof of assessment work in accordance with the terms and conditions set out in the Mining Law and its Regulations. The Regulations to the Mining Law establish minimum amounts that must be spent or invested on exploration and exploitation activities. A report must be filed in May of each year regarding the assessment work carried out in the preceding year. The mining authorities may impose a fine on the mining concession holder if one or more proof of assessment work reports is not filed on time.
The most common circumstances under which concessions may be cancelled are:
- for using the mining concession to carry out the exploitation of minerals or substances not subject to the Mining Law;
- for failing to perform and prove the assessment works contemplated in the terms and conditions set out in the Mining Law and its Regulations;
- for failing to pay the mining duties or the discovery premium or economic consideration, when applicable;
- by a waiver of rights filed by the title-holder or at the request of the title-holder, as substitution of the mining title, resulting from a reduction of the surface area covered by the concession or unification of two or more lots;
- through a decision by a competent court in Mexico;
- for grouping concessions covering non-adjoining mining properties for the purposes of proving assessment works, when said concessions do not either constitute a mining or mining-metallurgic unit from the technical and management standpoint; and
- for the holder of a mining concession to lose its legal capacity to be a holder.
To clearly understand the difference between surface owners and holders of mining concessions located within Mexico, 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 why ownership of real property itself does not grant to the owner the right to explore or to exploit the mineral resources that may exist therein.
In the following, we review the relevant concepts within the Mining Law that regulate the rights granted by mining concessions to their holders with respect to surface land, and the main characteristics of each of the legal mechanisms that the Mining Law provides for access, possession, occupation and even ownership of surface land that might be considered essential for the performance of mining work.
The different burdens of or limitations to surface land that may be requested by a mining concessionaire under the Mining Law are expropriation, temporary occupation and creation of easement.
In general terms, expropriation is the administrative act whereby the federal government unilaterally imposes on individuals or private legal entities the transfer of their assets for compliance with a matter of public interest, in consideration of an indemnity.7
Expropriation also covers the administrative procedure of public law by means of which the federal government, unilaterally and in the exercise of its sovereignty, legally proceeds, in particular, against an owner or possessor for the constrained acquisition or transfer of an asset for reasons of public interest and by means of a fair indemnification.8
The expropriation procedure may be initiated exceptionally by an individual or private legal entity (in this case, the holder of a mining concession), when legally permitted by virtue of the Mining Law, which expressly authorises the concessionaire to do so.
According to the Mining Law, expropriation enables the Federal Executive, at the request of the holder or assignee of a mining concession and subject to payment of the respective indemnification, to authorise in a presidential decree the mandatory transfer of land essential to the miner for carrying out exploration, exploitation or beneficiation work, and for the deposit of dumps, tailings, dross and slag.
Temporary occupation is the administrative act whereby the Ministry of Economy (as a legal entity of the Federal Executive), at the request of the holder or assignee of a mining concession and by means of an annual indemnification at the expense of the latter, authorises, for a certain period of time, the temporary use of land that is essential to carry out exploration, exploitation or beneficiation work, and for the deposit of dumps, tailings, dross and slag.
Whereas in the case of an expropriation the ownership of the surface land is transferred to the mining concessionaire, in the case of a temporary occupation the owner of the surface always retains ownership of the land in question, and is only dispossessed from the use and occupation of the same during a certain period of time, in consideration of a fixed amount of money to be received every year from the holder of the mining concession, who in turn is authorised to carry out the mining activities. Thus, upon the conclusion of the temporary occupation, the material and legal possession of said land must be returned to the surface owner.
In general terms, an easement is a lien created over a real estate property for the benefit of another property with a different owner.
Sometimes the easement consists of granting a third party the right to perform certain acts implying a use of the land, and in other instances it may consist of partially preventing the owner of the land from exercising its own rights.9
The general content of the easement, as to the benefit or utilisation of the land by the holder of the mining concession, and the limitation or restriction in the domain of the servient tenement's owner, gives ground to several kinds of easements that may be created depending on the benefit or utilisation pursued.
For the purposes of the Mining Law, an easement may be requested on land where the mining concession is located, or on adjacent land to which access is required; or otherwise, to provide a mining concession with services (e.g., water and electricity supply) required for the performance of the work related to the concession on such land.
In addition to the aforementioned legal mechanisms, which are acknowledged as rights of the holder of a titled mining concession, a prior right to gain access to the surface land covering the mining claim also exists: once an application to obtain a mining concession has been admitted for study, and provided that other legal requirements are met, the mining authorities shall issue an 'identification certificate', valid for a 60-day term, so that a mining expert can prepare survey work on the land where the lot is located.
The identification certificate contains a warning (as provided for in the Regulations to the Mining Law, and in accordance with Article 57, Paragraph II of the Mining Law) to the effect that any person without mining rights who prevents or hinders the survey work on the lot that forms the subject matter of the application shall be fined an amount of between 10 and 2,000 times the general minimum wage in effect in the Federal District.
Mining concession holders are entitled to access surface land, notwithstanding that the land is private, ejido or communal property.
Ejido property is land that has been provided to a population or that is incorporated into the ejido regime. Ejido properties are classified as: (1) land for human settlement; (2) parcelled land; and (3) land for common use.
In the case of a private property, the Mining Law sets out the steps to be followed to obtain a limitation or burden thereon.
In cases where the property to be accessed belongs to an ejido or agrarian community, the application must be filed before the mining authorities. Once the filing is complete and the legal requirements are met, the file must be transferred to the Ministry of Agrarian Reform to continue the process in accordance with Articles 93 to 97 of the Agrarian Law (and any other related and applicable articles).
The Ejidatarios' Meeting is the ejido body with the authority to classify such land within the total surface of the land corresponding to the ejido; likewise, it is entitled to approve the execution of agreements with the purpose of granting the use of common land to third parties.
The rights on land of common use are considered as granted in equal parts to each holder of a share in common lands (ejidatario or ejidataria), unless otherwise determined by the Ejidatarios' Meeting based on special circumstances.
The government is authorised to requisition ejido or communal properties, but only in circumstances where the public interest is deemed to be of greater importance than the social interest of the ejido or of the community (as in the case of mining) and provided no other alternative land to cover such needs exists.
Burden or limitation of ejido property
The public interest causes provided by the Mining Law for an ejido or communal property to be expropriated for mining include:
- the creation and extension of industrial development areas;
- the exploitation of natural resources owned by the nation and the installation of beneficiation plants related to that exploitation; and
- other causes provided by the Expropriation Law and by other laws.
The Agrarian Law acknowledges the importance of the mining industry, and the public interest in the exploitation of minerals located in the subsoil.
The Ministry of Agrarian Reform is the authority competent to notify an expropriation to the Ejido Commission, which shall be made:
- through an official communication;
- through publication in the Official Journal of the Federation; and
- through publication in the official newspaper of the corresponding state.
In addition, the Agrarian Ministry shall request opinions from the governor of the corresponding state, the Mixed Agrarian Commission of the entity where the lands are located and the official (government) bank operating with the ejido.
It is also necessary to conduct an inspection visit to determine the veracity of the data included in the corresponding application for expropriation.
There are great advantages and benefits in the fact that, in Mexico, the concessionaire is entitled to approach the owner of the surface land where the concession is located, and to freely negotiate and agree on the terms and conditions under which the concessionaire may:
- obtain free access to the surface covering the mining concession for the performance of mining work;
- occupy, use and possess (totally or partially) the surface land necessary to carry out said work, or to establish the facilities considered important for its operation; and
- acquire said surface land, totally or partially, through any contractual mechanisms of a private nature.
The contractual means available for such purposes vary according to the applicable Mexican laws; therefore, we mention only those considered the most important and most frequently used in mining, namely:
- lease agreements;
- commodatum contracts;
- private agreements for the occupation and use of the surface land, or any other similar purposes; and
- purchase agreements.
The form of the contract or agreement is not as relevant as its main purpose and the clear determination of the rights and obligations acquired by each of the parties executing the same.
From a practical standpoint, it is always advisable that the negotiation and execution of a contract or agreement be made with the owner of the surface land in the first stages of either the exploration work or the mining project itself given that, in our experience, some mining companies working in Mexico have faced serious problems and delays with non-existent agreements, or when trying to obtain the necessary authorisation and consent in the advanced stages of a project.
Furthermore, a lack of negotiation prior to the execution of a contract or agreement with the owner of the surface land may not only cause serious problems and delays in the schedule of work but may also incur additional costs and excessively long periods of time in trying to find a solution to a problem.
Resolutions issued by the Mexican authorities upon conclusion of expropriation, temporary occupation or creation of easement are not final; the person considering himself or herself as harmed by virtue of a resolution may file a revision remedy according to the terms of Article 83 (and other related and applicable articles) of the Federal Law of Administrative Procedure10 or, if applicable, contest via an amparo proceeding (a judicial proceeding aimed at protecting the individual guarantees contemplated by the Constitution).
Those conflicts arising from the interpretation, execution or compliance with contracts or agreements entered into by private parties (as in the case of a mining concessionaire and the owner (or owners) of the surface land) shall be submitted to the competent Mexican courts or, when permitted and agreed upon by the parties, definitively settled by arbitration or through any of the alternative means of dispute resolution.
Should an administrative procedure declare that the requirements established in the Mining Law, its Regulations and other applicable legal provisions have been followed, and that the indemnification is within the prevailing values set out in the respective appraisal and is actually paid, the revision remedy or the constitutional protection shall not be granted. In such a case, the expropriation, temporary occupation or creation of easement shall be final, binding and enforceable.
iii Additional permits and licences
The Federal Law of Fire Arms and Explosives (LFAE) administers the purchase, storage and use of explosives in the mining industry; it is administered by the Ministry of National Defence and is considered to be of national security.
Mining companies usually do not use explosives until the advanced exploration stages. They must obtain an explosives permit before purchasing any explosive, and must also comply with all the requirements of the LFAE, including the construction of special warehouses to store explosives and purchasing explosives only from authorised distributors that are duly recorded by the Ministry of National Defence. One person will be responsible for the explosives used by the company, and they must also be recorded by the Ministry.
Mining companies usually buy water from concessionaires of the area where the early stages of exploration work are being carried out.
As the construction or exploitation stage approaches, mining companies must obtain concessions from the National Water Commission or purchase concessions previously granted by that authority.
The National Water Commission has a policy of not granting any new concessions; therefore, mining companies must negotiate with holders of water concessions that have been previously granted.
Finally, under the Mining Law, mining concessionaires may use water obtained directly from the mine.
iv Closure and remediation of mining projects
Environmental impact authorisations (EIAs), which are granted case by case, contain a section devoted to the closure and rehabilitation plan for the mine; this plan is approved by the environmental authority before exploitation activities begin. There is no need to provide financial guarantees to cover all or a substantial part of the plan's costs. The authority may carry out audits as it considers convenient to verify compliance with the obligations included in each EIA.
IV ENVIRONMENTAL AND SOCIAL CONSIDERATIONS
i Environmental, health and safety regulations
The development projects and prospects of companies in Mexico are subject to Mexican federal, state and municipal environmental laws, regulations and Official Mexican Standards (NOMs) for the protection of the environment.
The main environmental legislation applicable to mining projects is the General Law of Ecological Balance and Environmental Protection (LGEEPA), of federal jurisdiction, and its Regulations in Environmental Impact Matters (REIA), which are enforced by the Federal Bureau of Environmental Protection (PROFEPA). PROFEPA monitors company compliance with environmental legislation and enforces Mexican environmental laws, regulations and NOMs.
If warranted, PROFEPA may initiate administrative proceedings against companies that violate environmental laws; in the most extreme cases, proceedings may result in the temporary or permanent closure of non-complying facilities, the revocation of licences, authorisations and permits, and other sanctions such as fines that can be as much as 7,085,000 Mexican pesos, pursuant to Article 171 of the LGEEPA. As such, under Article 28 of the LGEEPA and the REIA, an EIA must be obtained prior to the initiation of mining exploration and exploitation activities.
Only in certain exceptions referred to in Article 31 of the LGEEPA, when all the environmental impact of an activity are regulated by a NOM, a partial urban development plan or an ecological ordinance territory programme, or in the case of constructions inside industrial parks that have already been approved, the Secretariat of the Environment and Natural Resources (SEMARNAT) can authorise certain activities without the need to present an environmental impact statement. In such cases, a preventive report will have to be presented instead for evaluation prior to the initiation of the exploration and exploitation activities, or the processing of minerals.
NOM-120-SEMARNAT-2011 regulates the environmental protection measures in place for direct mining exploration activities in specific areas (agricultural, farming or virgin areas of dry climates, etc.), and any mining project that complies with this NOM in the exploration phases will have to present a preventive report rather than an environmental impact statement.
Any individual who owns or holds real estate in Mexico that has suffered any kind of pollution must remediate the pollution; this provision is applicable at any stage of any mining project in Mexico.
The environmental regulations have become increasingly stringent during the past decade. The entry into force of the North American Free Trade Agreement in 1999 made clear Mexico's need to reach a balance between the elimination of barriers to international trade on one hand, and the preservation and protection of the environment on the other.
On 7 June 2013, the Federal Law of Environmental Responsibilities was published in the Official Journal of the Federation and became effective on 7 July 2013.
Under the referred Federal Law of Environmental Responsibilities, district courts may receive and, in its case, must follow up a liability action on damage to the environment for the purposes of restoration or compensation (besides those actions already existing from the civil, administrative and criminal points of view); penalties under this action may be as much as 600,000 days of minimum wage in force in Mexico City on the date on which the sanction is imposed. The minimum wage in Mexico City for the year 2021 is 141.70 Mexican pesos.
ii Environmental compliance
Pursuant to the Federal Criminal Code, some crimes against the environment are sanctioned with prison sentences. In some cases, those crimes are prosecuted under a PROFEPA action.
iii Third-party rights
In general terms, mining concessions are granted to the first petitioner filing an application to obtain a mining concession over free land (under the terms set out in the Mining Law).
The only third-party rights that are recognised are the rights of the owners of the surface land over which mining concessions are located, and with whom mining concessionaires must negotiate.
We must also mention that if any free land (in terms of the Mining Law) is located within an area populated by an indigenous community (and which is different from an ejido or agrarian community), the indigenous community has a preferential right to become the mining concessionaire.
The right of first refusal is limited to the area covered by the land owned by the indigenous community.
In general terms, mining concessionaires only need to negotiate access agreements with the owners of the surface land over which their respective mining concessions are located.
No third party has the right to request, or ask in any manner whatsoever, for the closure of a process and the abandonment of any mining project, as environmental concerns are a matter of administrative law. However, on 30 August 2011, certain amendments to the Federal Civil Procedures Code were published in the Official Journal of the Federation. These amendments mainly consist of establishing three categories of collective actions, by means of which 30 or more people claiming injury resulting from environmental harm, among other things, have sufficient and legitimate interest in seeking through a civil procedure restitution, economic compensation or suspension of the activities from which the alleged injury derived.
iv Labour issues
The Federal Labour Law (FLL) establishes that employees work a maximum of 48 hours per week. If an employee exceeds the number of authorised labour hours per week, he or she is entitled to receive an additional overtime payment.
Employers must register employees with the Mexican Institute of Social Security.
The employer must periodically deposit a sum equivalent to 2 per cent of each employee's salary into a bank account as a retirement fund. A housing fund of an amount equivalent to 3 per cent of the employees' salary must also be paid by the employer.
Labour unions are recognised under the FLL to protect employees' interests, and collective labour contracts are signed between the employer and the labour union; contracts are reviewed every two years.
The FLL acknowledges three work shifts: day shift (eight hours), night shift (seven hours) and mixed shift (seven-and-a-half hours). Employees are entitled to one day of rest with full pay after six working days.
The FLL establishes different daily wages for each category of service to be rendered, taking into consideration the respective geographical area where the services shall be provided. Annual revisions of salaries are also considered in the FLL.
Employees have the right to an annual vacation, which is not to be less than six working days. For every year the employee continues to work for the employer, he or she will receive an additional two working days. After four years, an employee's vacation period will increase by only two working days for every additional five years he or she works for the employer.
Employees have the right to receive a vacation premium of at least 25 per cent of their salary during the vacation period.
Employees are entitled to participate in the earnings of their employees, based on the percentage determined by the National Commission for Workers' Participation in their Employers' Earnings.
On 23 April 2021, the FLL was amended to forbid the outsourcing of services contemplated in the main corporate purposes of companies in Mexico, such amendment provided a period of 90 days counted after the date of the publication of the amendment for companies to hire any outsourced employee they may have or regularise their relationship with companies rendering services upon the amendment. In the case of mining companies, the rendering of exploration and exploitation services by a third party is now limited because of the recent changes of the FLL. Companies may outsource services, provided that the service provider company is part of the same corporate group in terms of the Mexican legislation or the company is duly registered as a specialised services provider company with the Secretariat of Labour and Social Welfare. In addition, the relationship shall be formalised through the corresponding services agreements between the parties.
V OPERATIONS, PROCESSING AND SALE OF MINERALS
i Processing and operations
Owners of processing plants in Mexico must process at least 10 per cent of their capacity from small mines.
In terms of foreign labour, there is no restriction on the employment of foreigners in positions of responsibility (such as management). There is, however, a requirement for a ratio of at least 10 Mexicans to one foreigner to be employed for technical labour.
ii Sale, import and export of extracted or processed minerals
The Customs Law and the Foreign Trade Law regulate the import and export of goods. Depending on the type of commodity, there may be additional requisites in special laws or regulations.
The Customs Law provides the proceedings regarding foreign trade, such as the entry, exit, custody, storage, handling or holding of commodities. As a consequence, any person who performs these activities is subject to the Customs Law, including importers and exporters, their custom representatives, customs brokers, transporters and possessors of authorised tax warehouses.
The Foreign Trade Law provides the proceedings to be carried out before commodities are imported, especially regarding compliance with non-tariff regulations and restrictions.
Recently, foreign trade has become an issue of high importance to the Mexican government. In order to avoid illegal practices, such as customs fraud or using Mexico as a base to export Asian products to the United States, penalties in such matters have become especially strict.
In July 1988, Mexico converted to the Harmonised Tariff Schedule for commodity classification and codification, making its import and export classification system compatible with those of most countries with which it commonly trades.
The Official Journal published a new Customs Law on 15 December 1995, which became effective on 1 April 1996. The main purpose of the new Customs Law is not only to provide legal certainty, but also to promote investment and exports and to comply with the international commitments acquired by Mexico. One of its notable features is the incorporation of a number of tax rules and operational authorisations on specific international operations.
A new General Import and Export Tax Law became effective on 1 July 2007. The most significant changes relate to adjustments made by the Customs Council in terms of subheading classification.
The Mexican government continues to apply a policy of gradual elimination of import restrictions. In the past, import permits (licences) for most products had to be obtained from the Ministry of Economy. Currently, licences are required for only approximately 1 per cent of items or classifications in the customs tariff.
Regarding the clearance of commodities, the most important actions are:
- presenting any commodity before the customs authorities with a customs declaration;
- activating the mechanism of automatic selection;
- the customs inspection; and
- the disposition of the goods.
Importers and exporters of commodities must file a customs declaration before the customs authorities. The declaration shall include several annexes, such as the commercial invoice of the commodity, documents evidencing compliance of non-tariff regulations and restrictions (such as capacities, permits and NOMs), as well as those that allow the identification, review and control of the commodity, and documents regarding its origin, either to obtain the benefits of free trade agreements or to prove that the commodity does not originate from a country that performs dumping.
In order to import commodities, it is necessary to register before the General Customs Administration. In the event of importing a commodity that is sensitive for national production, importers need an additional registration called a 'Sectorial Registry' registration. Sometimes (e.g., in cases of temporary importation), registration is not necessary.
Tax benefits that are granted by free trade agreements represent the possibility of reducing or being exempted from tariffs according to the particular tariff preferential treatment schedule of each agreement. Despite this, such agreements do not represent an opportunity to avoid paying other taxes derived from the import and export itself.
The Customs Law provides a list of goods that are exempted from payment of duties on foreign trade. The list includes goods exempted because of international treaties, or because they are being imported for national defence or public safety purposes. Regarding other kinds of taxes derived from imports, the possibility of obtaining an exemption for each kind of good should be revised separately.
General import or export taxes are calculated in consideration of the customs value of the commodity. For most imports, the customs value is based on the price that was paid or that should be paid for the commodity, according to the commercial invoice (the settlement value). If other expenses incurred during the import increase that value, it would be subject to cost, insurance and freight rules.
In the event that there is no value, or if the price that has been or should be paid for commodities cannot be considered as the valuation base, one of the secondary methods derived from the Agreement on Custom Value of the World Trade Organization would be applicable.
Currently, there are no legal rules in force or industry codes that apply export restrictions or duties.
iii Foreign investment
Most deals involve Mexican mining companies in which foreign investment is involved. Although mining concessions may only be granted to Mexican individuals domiciled in Mexico, or companies incorporated in Mexico, those companies may be wholly owned by foreign investors; there are no restrictions in respect of foreign investment in Mexican mining companies. Mexican-incorporated mining companies must also be registered with the Public Registry of Commerce of their corporate domicile and with the Public Registry of Mining.
Mexican companies with foreign shareholders must register with the National Registry of Foreign Investments of the Ministry of Economy and renew their registration annually.
Mexican tax laws are based on the fact that all Mexican residents and foreign residents carrying out activities within Mexican territory are obliged to pay taxes according to the approved rules.
Mining activities are considered to be entrepreneurial, including the extraction, preservation or transformation of raw materials. The net income obtained from these activities is taxable in the same way as other entrepreneurial activities.
In fact, a 30 per cent income tax is applicable on the net income obtained from entrepreneurial activities carried out by companies and a 35 per cent rate could apply in the case of individuals carrying out business activities. There are no special treatments to apply for mining activities or other fiscal stimulus except for those established for all taxpayers who comply with the established requirements.
General rules are explained as follows.
According to the Federal Law of Duties, it is established that individuals and societies that have obtained a concession, and those developing work linked with exploration or exploitation of minerals, are obliged to pay several items, as follows:
- owners of concessions or assignments will be obliged to pay a biannual quota for each hectare, according to the period of validity of the concession or assignment;
- additionally, another royalty is imposed on owners of concessions or assignments who stop exploration or exploitation for two continuous years within the first 11 years of validity;
- a 7.5 per cent rate will be applied to the taxable profit obtained. The taxable profit will be determined by subtracting any deductible expenses from the accruable revenue resulting from the extractive activity. Both accruable revenue and deductible expenses will be relevant to the calculation under the Income Tax Law, with certain restrictions; and
- additionally, a royalty payment is payable under the Federal Law of Duties; the owners of concessions must pay an annual extraordinary mining duty of 0.5 per cent on the sale of gold, silver and platinum.
As previously described, corporations or individuals carrying out mining activities are required to pay federal taxes in the same way as other business entities. The taxes on business activities are described below.
A 30 per cent tax rate is applied to income obtained from entrepreneurial activities. Costs and expenses that are indispensable for the activity can be deducted, provided certain requirements are complied with, including: (1) obtaining electronic invoices; and (2) making payments to suppliers by bank systems (wide transfer, check, credit card, etc.)
Capital gains are considered as part of the taxed income obtained.
Fixed assets are deductible by depreciation based on a rate of 12 per cent applied to machinery and equipment involved in mining activities. Nevertheless, certain assets must be deducted based on the authorised rate according to the type of asset such as buildings, railroad, railways, office furniture and equipment, ships, planes, automobiles, computers, molds, etc.
The deductible amount is revised in line with inflation.
Interest is deductible on an accrued basis if obtained loans are invested in the main activity. Certain restrictions apply for loans received from related parties through a 'thin capitalisation' rule.
Exchange losses are considered as interest and must also be deducted on accrued basis.
Salaries and fringe benefits for employees are considered a deductible expense. Nevertheless, certain restrictions are imposed on payments that are exempt of tax for employees.
Losses can be deducted within the 10 years following the year in which the loss occurs. The deductible amount is revised in line with inflation.
In the case of individuals, the same rules apply but the tax rate can reach 35 per cent.
Value added tax
Individuals and corporations are obliged to pay VAT at 16 per cent rate on the sale of goods, leasing and the rendering of services within Mexican territory.
A zero per cent tax rate is applied on certain activities, such as exports of goods and services (with certain restrictions), and transactions such as the sale of foods and patented medicine. A zero per cent tax rate also applies to the sale of gold and jewellery that contains 80 per cent of gold in sales to business entities (the same rule does not apply to sales of same to the general public).
Certain goods are exempt from VAT, such as land, apartment blocks and houses, books, magazines and newspapers, gold bullion that contains 99 per cent of gold in sales to the general public.
VAT payments should be made monthly on cash flow basis; the amount payable is the VAT charged to customers less the VAT paid to suppliers. Tax returns are definitive and independent of tax returns for other months.
In the case of a favourable balance, it is permitted to claim a reimbursement from the tax authority.
Employers are obliged to withhold the income tax relating to employees' salaries. This could amount up to 35 per cent and it is calculated with a progressive tariff.
Additionally, it is required to withhold social security quotas and pay them to the Social Security Institute with the employer's social security quotas, which can amount up to 25 per cent of the salaries.
Employers are also obliged to pay 5 per cent into a housing fund and 2 per cent into a retirement fund for their employees.
For local purposes, a payroll tax of between 2 and 3 per cent can be imposed depending on the place of business.
Withholding taxes on payments abroad
A general tax rate of 25 per cent is imposed on payments made to foreign residents for certain services, royalties and other kinds of payments.
Interest paid abroad can be taxed at 4.9 per cent, 10 per cent, 15 per cent, 21 per cent or 35 per cent, depending on the terms and conditions of the loan and the characteristics of the creditor.
Certain reductions may apply depending on whether or not a double taxation agreement exists.
For domestic purposes, a 10 per cent tax rate applies to payments made to individuals. Dividends paid to other corporations are exempt from withholdings.
On the other hand, in case of shareholders who are foreign residents, a 10 per cent tax rate applies on the amount of dividends paid. Notwithstanding, assuming that an agreement to avoid double taxation is in force between Mexico and the country where the shareholders reside, it is possible that a reduction of the tax rate could apply.
Dividend payments are exempt from withholdings when derived from profits obtained in or before 2013.
If dividends cannot be identified with profits on which income tax has been paid by the company that distributed the dividends, the company will be obliged to pay tax at 35 per cent, subject to certain rules.
Other taxes apply for certain operations, such as the purchase of land and construction, but these are generally imposed by states and municipalities.
In general terms, mining concessionaires need only pay mining taxes (duties) that are of a federal nature as determined in the Federal Law of Duties and depending on the date of issuance of the mining concession and the number of hectares of each concession.
The main concepts that produce duty payments are:
- registration with the Public Registry of Mining – 1,410 Mexican pesos;
- cancellation of a registration – 705 Mexican pesos;
- registration with a mining society – 2,820 Mexican pesos;
- registration of changes to the by-laws of a mining society – 1,410 Mexican pesos;
- notarial notices – 705 Mexican pesos;
- other notices – 702 Mexican pesos; and
- review of documents – 705 Mexican pesos.
VII OUTLOOK AND TRENDS
With only 25,221 concessions currently valid and existing, representing 20,970,000 hectares, equal to only 11 per cent of the national territory, Mexico has great potential for exploration and exploitation of minerals, and with the creation of the Mining Fund, created from royalties imposed to the mining companies operating in Mexico, the federal government is seeking to bring direct benefits to the hosting communities of the mining projects in Mexico and, as a result, the local communities have become more friendly to the industry.
Mexico is now becoming a more attractive mining destination because of its recent lithium discoveries and mining projects. In December 2019 a report from the Mining Technology announced that Mexico leads the worldwide lithium reserves, with proven and probable reserves calculated as 243.8 million tones.
The main targets of the newest administration in Mexico are to make the mining industry more sustainable, to use and improve the technology available and to increase the safety on the mine sites with the implementation of a 'zero accident' policy, as well as to both secure the investment of the companies and the wellbeing of the workers and collaborators to the mining industry, even after the remediation of a mine.
Finally, it is important to consider the international treaties entered into by Mexico on human rights, which are considered by the mining industry to be of the utmost importance for the development of mining projects; while the mining industry in Mexico continues to develop its activities, non-governmental organisations claim they are defending human (indigenous) rights. Mexico is still evolving on matters related to human rights and mining projects must now also see this as an important consideration in the development of any project.
1 Patricia Vivar Zirate is a counsel and Juan M Coronado Ávila is a senior associate at VHG Servicios Legales SC, and Rubén Federico García is a partner at RSM Mexico Bogarín SC.
2 Derecho Minero Mexicano, María Becerra, p. 111, first edition, published by Porrúa SA, Mexico 1963.
3 Article 6 of the Mining Law, published in the Official Journal of the Federation on 26 June 1992 (and amended in 1996, 2005 and 2006).
4 Amendments to the Mining Law published in the Official Journal of the Federation on 11 August 2014.
5 Mining Law and Regulations of Mexico, Fausto C Miranda and John C Lacy, p. 23; first edition 1992/1993, Rocky Mountain Mineral Law Foundation.
6 Amendments to the Mining Law published in the Official Journal of the Federation on 11 August 2014.
7 Elementos del Derecho Administrativo, Luis H Delgadillo Gutiérrez y Manuel Lucero Espinosa, p. 99; first edition, published by Editorial Limusa SA.
8 Derecho Administrativo, Andrés Serra Rojas, p. 315, second volume, 13th edition, published by Editorial Porrúa SA, Mexico 1985.
9 Compendio de Derecho Civil II, Rafael Rojina Villegas, p. 135, 16th edition, published by Editorial Porrúa SA, Mexico 1984.
10 Published in the Official Journal of the Federation on 4 August 1994, amended on 19 May 2000.