NSSC: no prior consultation is required without direct impact on the community
Mining Department Report | NSSC: no prior consultation is required without direct impact on the community
On 4/11/2025, the National Supreme Court of Justice (NSSC) rejected the amparo action filed by the Toba Nam Qom Community against the National State, the Province of Formosa and the company Dioxitek S.A. in the case “Toba Nam Qom Community c/ National State and others s/ amparo”. The plaintiff sought to have her right to prior, informed consultation “effective” through her representative institutions, under the terms of ILO Convention 169 (Law No. 24,071), with respect to the installation of the Uranium Dioxide Plant NPU of Dioxitek S.A. on a property located in the Scientific, Technological and Innovation Pole of Formosa, 4 km away from the neighborhood in which the plaintiff community lives.
The NSSC concluded that the right to prior consultation was not established because (a) it was not proven that the challenged measure directly affects the plaintiff community and (b) the project had complied with the environmental assessment procedure, including the public hearing in which the community representative participated.
To decide in this way, the NSSC held that the right of indigenous communities to prior consultation does not exist in the face of any legislative or administrative measure, but only in those “likely to affect them directly.” That is, according to the court, those measures “that are capable of impairing or harming directly – and not indirectly or remotely – the rights of aboriginal communities”. He added that such a right does not exist, for example, in the face of decisions that affect all the inhabitants of the country or the province. In the case, “the existence of current or imminent damage that could directly affect the lives, beliefs, institutions or lands occupied by the plaintiff community, whose representatives, was not proven.”
Furthermore, the NSSC stressed that the Province of Formosa had complied with the environmental impact assessment procedure prior to the start of the project, as required by local regulations. In particular, he highlighted the holding of a preliminary hearing, in which the representative of the plaintiff community participated.