By Carlos Romero
Mexican agrarian law provides that when indigenous communities[1] take part in a court proceeding, the agrarian court must assign, free of charge, a translator and interpreter who understands their culture and speaks their language so that they can explain the scope and consequences of said court proceeding.[2]
Without a doubt, it is a challenge for translators and interpreters to understand and explain the scope of a court proceeding. Well, a recent non-binding precedent from a federal appellate court in Chihuahua, Mexico, establishes that the indigenous communities’ right to be assisted by an interpreter is not limited to court proceedings, but under certain circumstances, it must cover “acts performed out of court proceedings,” and the interpreter must explain the scope of such acts.[3]
What are those “acts performed out of court proceedings”? How can interpreters and translators understand and explain the scope of these “acts performed out of court proceedings” to indigenous communities?
We can find some answers in the following summary of the amparo[4] judgment, from which the aforementioned non-binding precedent arises.[5]
In 2013 and 2014, an ejido[6] located in a remote area of the Sierra Tarahumara of Chihuahua, where the primary language spoken is Raramuri, held two meetings in which the attendees authorized entering into several agreements with an energy company, in order to grant a right of way voluntary easement, a lease of an additional area, and the usufruct of an area for the location of a distribution valve, among other transactions aimed at the extraction of natural gas and its transportation through a gas pipeline.
However, in 2018, the ejido claimed before an agrarian court the nullity of the aforementioned meetings and agreements, arguing that the company did not explain to them the production project it intended to carry out on their lands and that no interpreter explained to the Raramuri indigenous ejidatarios (communal landowners) the matters submitted for their analysis and resolution at the meetings and in the agreements, among other arguments.
In turn, contrary to what the ejido argued, the company replied that all matters were duly explained at the meetings and when entering into the agreements, just as it was allegedly evident in the corresponding minutes and agreements, among other arguments.
Subsequently, the agrarian court ruled in favor of the ejido and issued a judgment declaring the nullity of the meetings and agreements by considering, among other aspects, that there was indeed no evidence that the company had explained the production project it intended to conduct in the ejido lands, nor evidence that it had answered the community’s questions on this project, in order to demonstrate that the ejido was fully aware of the scope, consequences, negative effects, and possible benefits of the project.
In addition, the agrarian court determined that there was no interpreter or translator present at the meetings or when entering into the agreements, and there is no evidence that the indigenous community’s rights, practices, and customs had been respected, such as the use of their mother tongue (Raramuri).
Notwithstanding, the affected company filed a direct amparo claim against the agrarian court’s judgment, arguing, among other things, that the project developed is in the public interest since it uses a public good such as natural gas, which is transported through the aforementioned gas pipeline to a state-owned thermoelectric station and from which several Mexican states benefit.
It added that they have already invested heavily, and the project has created many employment opportunities, that the obligation of having an interpreter is only for the court proceeding stage and not for the holding of meetings and entering into agreements, and that the ejido’s practices and customs are to hold its meetings in Spanish and not in Raramuri, among other arguments.
However, the federal appellate court denied the amparo requested by the company and ratified the nullity of the meetings and agreements arising therefrom. The court found that, in order to have full access to judicial relief in equal terms, the indigenous communities must be assisted by an interpreter who understands their language and culture, and that such a right may be extended to “acts performed out of court proceedings” (such as meetings and agreements) in the event the court notes discrimination or vulnerability, such as a linguistic barrier.
Likewise, the federal appellate court deemed that the indigenous community’s rights, practices, and customs regarding language as an essential component of their identity were not respected, since the absence of an interpreter who understood their language and culture reaffirmed the cultural and linguistic barrier existing between the indigenous community and the company.
The federal appellate court added that in this case, there were clear power asymmetries between the company and the ejido with members of the Raramuri indigenous community; therefore, the right to being assisted by an interpreter who understands their language and culture must include “acts performed out of court proceedings,” in this case, the holding of the aforementioned meetings and the entering into the aforementioned agreements.
Additionally, the federal appellate court determined that the need to have an interpreter who understands their language and culture is not a mere formality, but in this case, due to the degree of poverty and isolation of most of the communal landowners, their social and cultural vulnerability did not allow them to actually understand the legal effects of the resolutions reached in the ejido’s meetings and reflected in the agreements entered into with the company.
Lastly, the federal appellate court considered that the agrarian court did not apply a generic presumption that all indigenous communities lack the conditions to understand the scope of the legal transactions they execute, and thus, all indigenous communities must be assisted by an interpreter.
However, in this particular case, it was evidenced that, due to their poverty and isolation, the communal landowners were not able to fully understand the scope and consequences of the resolutions reached at the meetings and the obligations granted in the agreements entered into with the company through their representatives.
The foregoing invites us to reflect upon the responsibilities of translators and interpreters in ejido meetings with members of indigenous communities and when entering into agreements with third parties.
According to this precedent, translators, and interpreters are required to understand and be able to explain the legal consequences of potential transactions to be concluded by ejidos.
Nevertheless, while translators and interpreters must be competent in both languages and knowledgeable in the indigenous culture, a legal analysis of the scope and consequences of potential legal transactions must be performed by a private or public attorney at law, with the appropriate legal training and authorizations to provide legal advice to ejidos.
Federal appellate courts should clarify the foregoing in order to ensure that the indigenous communities’ linguistic rights and access to justice are fully respected and to grant legal certainty to transactions and projects executed with third parties.
Footnotes:
[1] There are over 69 indigenous communities in Mexico, each of them with its own language, and four in the State of Chihuahua: Tarahumaras, Pimas, Tepehuanos del Norte and Guarijó (https://sic.cultura.gob.mx/lista.php?table=grupo_etnico&disciplina=&estado_id=; https://atlas.inpi.gob.mx/). While Mexico’s population is 126,014,024 and the population speaking an indigenous language is 7,177,185, the monolingual population that speaks an indigenous language but not Spanish is 865,972 (https://www.inegi.org.mx/; https://www.inegi.org.mx/temas/lengua/; http://estadistica-sig.inmujeres.gob.mx/formas/tarjetas/Poblacion_indigena.pdf).
[2] Agrarian Law [Ley Agraria], section 164 subsection IV.
[3] Digital folio: 2025921. Level: Appellate Court. Precedent: XVII.1o.P.A.19 A (11a.). Eleventh Series. Source: National Supreme Court Reports, Book 22, February 2023, Volume IV, page 3588. Matters: Constitutional, Administrative. Type: Non-binding.
[4] A constitutional remedy under Mexican law, aimed at preserving the rights provided by the federal constitution.
[5] Direct amparo: 298/2021. April 21, 20222. First Appellate Court of Criminal and Administrative Matters in the Seventeenth Circuit (Chihuahua).
[6] Communal landholding. Village lands communally held in the traditional system of land tenure that combines communal ownership with individual use. Spanish-English Dictionary of Law and business. 2nd edition. Thomas L. West III.
About the Author
Carlos Romero. Mexican-American licensed to practice law in Mexico. Currently studying for a Master of Laws at the University of Chicago Law School.
carlos@replicalt.com
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