GUATEMALA

GUATEMALA

THE ROBUST OAK from San Marcos, Guatemala

No. 9

19th June 2007

Pastoral Commission Peace and Ecology (COPAE)

http://www.resistance-mining.org

Constitutional Court's resolution ratifies the legitimacy of the community consultation

On the 8th of May 2007, the Judges of Guatemala's Constitutional Court (CC) issued a resolution regarding the Act of Unconstitutionality of the "Community Consultation on mineral exploration and exploitation" in the municipality of Sipacapa, San Marcos, held on the 18th of June 2005 and organised by the Sipacapa Municipal Council. This Act of Unconstitutionality was presented by Rosa María Montenegro de Garoz, lawyer of a private consultant firm advising the mining company Montana Exploradora de Guatemala, operating the Marlin mine in San Miguel Ixtahuacán and Sipacapa.

After taking into account all nine points of unconstitutionality presented by Montenegro de Garoz, the CC confirmed the following:

1. The community consultations are legal, and therefore legitimate. The Municipal Council is authorised to convoke and organise community consultations among the inhabitants of its territory. The indigenous communities are in their right to partake in participatory democracy by means of the community consultations. Furthermore, the CC determines that the community consultations constitute important mechanisms for popular expression, through which various constitutional rights are put into practice, such as the ´liberty of expression´, the ´liberty of action´, the ´right of manifestation´ and the legitimate popular resistance in order to protect and defend the rights and guaranties assured in the Constitution.

2. The declaration of the unconstitutionality of Article 27 of the Community Consultation's Regulation, emitted by the Municipal Council of Sipacapa, which literally says: "The results of the Community Consultation are the sovereign decision of the will of the indigenous and non-indigenous population above the age of 18 and registered in the Municipality of Sipacapa, San Marcos; the result will be of general observance and obligatory within the territory of the Municipality of Sipacapa." The judges of the CC based their decision of unconstitutionality on Article 125 of the Political Constitution regarding the exploitation of non-renewable natural resources, literally saying: "The technical and rational exploitation of hydrocarbons, minerals and other non-renewable natural resources is declared a necessity and of common public interest. The State will establish and favour the appropriate conditions for its exploration, exploitation and commercialisation." Hence the CC rejected the regulation of the Sipacapa Municipal Council that the result of the Community Consultation is binding.

3. A demand that the Congress of the Republic will reform the national mining policy with the sole purpose of attaining the common interest. The CC also expressed the urgency to regulate the proceedings regarding the Community Consultation, as stipulated in Convention 169 of the International Labour Organisation (ILO), in order to assure the participation of the indigenous peoples on issues of national importance before reaching any other agreements and consensus. Finally, the CC prioritizes the establishment of mechanisms that grant fair compensation to those regions affected by mining exploitation.

We at the Pastoral Commission Peace and Ecology –COPAE– agree with Guatemalan legislation that the consultation in Sipacapa cannot prohibit the extraction of natural resources in our country. But in the wake of the entry into force of the Convention 169 in 1996, the Guatemalan State is obliged to initiate an open, sincere and meaningful discussion with the concerned population, in other words: it necessarily needs to consult the concerned population. By granting various types of mining licenses ("examination", "exploration" and "exploitation") without previously consulting the indigenous populations in the San Marcos department after the entry into force of the Convention 169, the State failed the comply its resolutions.

On the other hand, the Guatemalan state institutions keep on promoting a rule of law which is solely benefiting a small group of society. COPAE thinks that the rule of law will be strengthened when our pluriculturality and multiethnicity will be recognised, understood and respected. Hence the need to eradicate all forms of exclusion, marginalisation and racism, in order to assure that there are no longer second and third-rate citizens in Guatemala. For that reason we have been, and we will keep on promoting community consultations, as one of the means fortify the rule of law and the participatory democracy in this country. Furthermore it needs to be clarified that the organization of the community consultations is a large, responsible and participative process; it is not a manipulated activity, like the transnational companies with their distorted concept want us to believe.

At COPAE we demand the cancellation of all mining licences conceded to this date, as well as the prohibition to grant new licenses, until no agreements are reached concerning the implementation of the community consultations. A moratorium on the granting of mining licenses gives the communities and indigenous peoples the opportunity to (re)consider and discuss the following issues: the percentage of royalties, the environmental safeguards, the tax regime and the investment plans to achieve sustainable and integral development programs in the areas where mining exploitation is planned.

In order to see the complete resolution of the CC, please visit the Court´s website (http://www.cc.gob.gt/sentencias/sent2006.htm) and click on the link saying "Caso Sipacapa".

2. The launching of the National Front against Chemical Metal Mining

On May 16th the National Front against Chemical Metal Mining (FNCM, as is its acronym in Spanish) was presented to the general public in Guatemala City. This event was organised by members of communities affected by the mining activities, community associations, environmental groups, as well as indigenous and religious organisations, in order to reaffirm their shared rejection of chemical metal mining in Guatemala. The FNCM intends to be an open space for all organisations, communities and individuals that embrace its principles of resistance against metal mining and of supporting the protection of the natural resources, as well as the creation of alternative, sustainable development initiatives in the regions where the government is promoting this industrial activity. The goals of the FNCM are:

• To support the resistance of the communities in Guatemala that will be jeopardised by future mineral exploitation;

• To realise joint actions in defence of our natural resources;

• To communicate and articulate actions of resistance by the indigenous and non-indigenous population against chemical metal mining at the national and international level.

Complementing the presentation of the Frente Nacional contra la Minería Química de Metales, the diverse group publicised its first Political Declaration. The document concludes with the following words:

With the imposition by the subsequent governments of policies directed at the promotion of metal mining exploitation, our country's natural resources are enriching the world's traditional capitalist elite, whilst our communities, especially the indigenous and mestizo farmers, see their subsoils and water reservoirs contaminated. This "promised route towards development" is merely elevating the levels of poverty and extreme poverty. Therefore we, as communities and organisations opposing the chemical metal mining activities, formed the National Front against Chemical Metal Mining, because we consider that Guatemala deserves a better fate if we want be to consistent and grant our children, our grandchildren and the future generations a habitable planet in worthy conditions regarding the state of society and nature.

We therefore believe that it is necessary that both the leaders of this country and the society on the whole should put their effort into the construction of a "SUSTAINABLE GUATMALA".