Guatemala Highest Court to Hear Landmark Indigenous Challenge against Mining Law

Published by MAC on 2012-08-01
Source: Statement, LAB

Guatemala: Historic Public Hearing

Beth Geglia

Latin America Bureau

20 July 2012

Indigenous communities express their support for the legal challenge to the government's right to change the mining law.

The Guatemalan Constitutional Court will hold a public hearing on the constitutionality of the country's mining law today, July 20 in Guatemala City. Buses coming from the western highlands will arrive to show support for the constitutional challenge that was placed on the mining law on March 12 of this year by the Council of Western Peoples (CPO). The courtroom is expected to fill with indigenous authorities from Guatemala's different departments, as well as community activists and civil society organizations.

The claims of unconstitutionality revolve around the law's lack of respect for indigenous rights as protected by various national and international laws and conventions, namely Convention 169 of the ILO, which Guatemala ratified in 1996. Convention 169 protects the rights of indigenous communities to be consulted about matters that have a significant impact on their lands, and has been a pillar in the indigenous rights movement of Guatemala for the last several years.

Community leaders condemn the fact that the law contains nothing about the right to consultation, or free, prior, and informed consent as established in the United Nations Declaration on the Rights of Indigenous Peoples. Guatemala's mining law was passed in 1997, a year after the ILO Convention 169 was ratified.

"I think that it was part of the contradictions and parallel agendas that have existed in this country," explains Francisco Rocael Mateo, Coordinator of the Departmental Assembly of Huehuetenango in Defense of Natural Resources:

On the one hand we were in the context of the signing of the Peace Accords where we advanced quite a bit with the singing of the agreement on indigenous identity, but at the same time they were advancing with their structural adjustments to basically allow for the selling off of natural resources and promoting foreign investment. In this context, the mining law was passed with very little discussion and the population's right to consultation was not accounted for.

The mining law passed in 1997 contained many neoliberal reforms that opened the gates for hundreds of mining concessions to foreign companies, in addition to the lack of human rights regulation. The law declared all Guatemalan subsoil property of the state, set royalties at 1-3% for mining companies, and guaranteed equal legal protections for foreign and national companies. Communities have organized their own consultations, known as consultas comunitarias, in spite of the mining law, citing the national Law of Decentralization and the Municipal Code as the domestic legal framework for these processes. Sixty-two have been held in municipalities throughout the country since 2005.

The results of the first consulta comunitaria in Sipakapa, department of San Marcos, overwhelmingly rejected Canadian mining company Goldcorp Inc's Marlin mine. The company responded by challenging the legality of the consulta in the country's court system. The Constitutional Court ultimately ruled in favor of the company, declaring the consulta to be valid but non-binding. The CPO's recent constitutional challenge to the mining law was a logical next step in the fight for recognition of communities' consultas. If the court upholds the challenge, it could bring into question the legality of the hundreds of exploration and exploitation licenses in the country and set an important precedent regarding the right to self-determination of Guatemala's indigenous peoples.

"Self-determination is the possibility our peoples have to decide freely over their future, what kind of development they need, and also to decide over their own lives," explains Francisco. "I think that is a right that all human beings hold."

To watch the livestream of the hearing in Guatemala City, go http://www.ustream.tv/channel/tv-maya, and for follow-up reporting on the event, visit http://colectiva.net.tc/centrodemedios/.

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Guatemala Highest Court to Hear Landmark Indigenous Challenge against Mining Law

Center for International Environmental Law (CIEL) & MiningWatch Canada press release

20 July 2012

(Washington D.C./Guatemala City) Today, Guatemala's Constitutional Court will hear a case challenging the constitutionality of the 1997 mining law for failure to consult with the country's indigenous peoples who make up more than half the population. The lawsuit, filed by the Western Peoples Council (CPO), contends that both national and international law require that the government consult with indigenous peoples before approving policies with significant impacts on their territories.

Three weeks ago, President Otto Pérez Molina proposed controversial reforms to the current law, including direct state participation in mining projects. He also lifted the previous administration's moratorium on the approval of new concessions. The moratorium dates back to 2008 when the Constitutional Court ruled that seven articles in the mining law are unconstitutional, stalling approval of any new licenses until national consensus could be reached on mining reforms.

Only six months into its mandate, the administration of Pérez Molina has already approved 68 new exploration and exploitation licenses. In total, 387 mining concessions have been granted with another 734 pending, many on indigenous territory.

"In 1996, the Government of Guatemala ratified the International Labour Organization's Convention 169 on the rights of indigenous peoples and signed the Agreement on the Rights and Identity of Indigenous Peoples as part of the Peace Accords. Its obligation to respect the rights of indigenous peoples in this country is long overdue," said Francisco Mateo Morales of CPO. "This is a historic opportunity for Guatemala's highest court to uphold indigenous rights."

The lack of prior consent and consultation at the project and policy level is at the root of much conflict and violence in Guatemala's mining sector. Over 70 municipalities have held referendums in which nearly a million people having voted against mining in their territories, but neither the government nor mining companies have respected the results. Meanwhile, targeted attacks and criminalization against those opposed to mining has intensified.

In Guatemala's northwest, Goldcorp's Marlin mine has been the site of conflict since prior to going into operation in 2005 and multiple international human rights bodies have recommended its suspension for failure to obtain the consent of affected Maya Mam and Sipakense indigenous peoples, as well as threats to local water supplies and public health. A People's Health Tribunal also found last week that Goldcorp should suspend its operations as a result of such risks.

In eastern Guatemala, in the municipality of El Estor, the dispute over the Fénix nickel mine has led to three lawsuits against HudBay Minerals in Canadian courts, arising from the rape of eleven women during a violent eviction of the community of Lote Ocho in January 2007, and the murder of community activist Adolfo Ich and wounding of Germán Choc in September 2009.

Near the capital city, community members from the municipalities of San José del Golfo and San Pedro Ayampuc are sustaining a now four-month blockade against the entry of Vancouver-based Radius Gold. Local spokespeople have filed repeated complaints for threats received, while Yolanda Oquelí was recently shot and wounded in a drive-by attack when leaving the blockade on June 13th.

In the southwestern municipality of San Rafael de las Flores, at the site of Tahoe Resources' Escobal project, community members who gathered some 1,000 signatures for a local referendum over mining were forced out of the committee responsible for overseeing the consultation process.

"International law clearly protects the rights of indigenous peoples to be consulted over legislation that affects their territories," said Kris Genovese, Senior Attorney with the Center for International Environmental Law in Washington D.C. "A favourable ruling in this case is a necessary step to address existing conflicts and to demonstrate to the international community that the rule of law exists in Guatemala."

The Constitutional Court will have twenty days to rule on the case after the hearing. In the event that the Court does not rule in their favor, the CPO will bring the case before the Inter-American Commission on Human Rights, having exhausted all domestic recourse to halt violations to human and indigenous rights as a result of the mining law.

Contacts:

Kris Genovese, Center for International Environmental Law (CIEL), (202) 742-5832
Jennifer Moore, MiningWatch Canada, 613-569-3439