A handful of Mayan-Q’eqchi’ men and women met with lawyers late last year in Ontario to review the details of three lawsuits filed in local courts against the Canadian mining company HudBay Minerals. They had traveled to Canada to pursue legal recourse for their claim that security personnel at the company’s Fenix Mining Project in El Estor, Guatemala, attacked, shot and raped Indigenous people between 2007 and 2009 who had criticized the mine and resisted resettlement.
The lawsuits against HudBay Minerals demonstrate how the rise of extractive industries in Latin America has deepened social conflict in Guatemala and throughout the region. The Observatorio de Conflictos Mineros de América Latina (Latin American Observatory of Mining Conflicts—OCMAL) reports 161 active mining conflicts in the hemisphere. Much of these conflicts stem from the fact that mineral resources are often located on Indigenous land where local communities are concerned about the effects of mining activities.
In Guatemala, mining companies and the state have been particularly criticized for their response to anti-mining resistance. From the Maya-Q’eqchi’ territories of Izabal, to the Maya-Mam territories of San Marcos, community members who speak out against mining operations have been threatened, raped, assassinated, or shot at point-blank range.
In a 2011 special report on extractive projects in Guatemala, the UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, noted that mining activities “have generated a highly unstable atmosphere of social conflict, which is having a serious impact on the rights of the Indigenous people and threatening the country’s governance and economic development.”
International Law
Much of the current debate over extractive projects in Guatemala and elsewhere focuses on the lack of consultation for affected populations. This right of consultation is clearly articulated in The UN Declaration on the Rights of Indigenous Peoples, to which Guatemala is a signatory: “States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent [FPIC] before adopting and implementing legislative or administrative measures that may affect them.”
The basic tenets of FPIC, or consulta previa, are to ensure that Indigenous peoples’ consent is sought and freely given or withheld prior to the authorization of development projects in their territories. FPIC requires that Indigenous communities receive accurate information about the scope and impacts of any proposed project. It also mandates that they are not coerced or intimidated and that Indigenous peoples’ choice to give or withhold consent is respected.
Even more, the International Labor Organization’s (ILO) Convention No. 169, to which Guatemala is also a party, requires that Indigenous and tribal peoples be consulted and able to engage in free, prior and informed participation in policy and development processes that affect them.
The Guatemalan Constitutional Court has repeatedly ruled that international human rights treaties ratified by the Guatemalan State prevail over domestic laws. This means that Guatemala is responsible for upholding ILO Convention No. 169 and the tenets of FPIC outlined in the UN Declaration on the Rights of Indigenous Peoples.
But there is disagreement on how to interpret international jurisprudence in cases where Indigenous peoples do not consent to extractive projects. The Convention 169 Manual published by the ILO in 2003 clearly states that the right to be consulted cannot be conflated as the right to veto. However, the Inter-American Court of Human Rights has established that development or investment projects within traditional Indigenous and tribal territories cannot proceed without the consent of Indigenous inhabitants.
At issue in Guatemala is that both mining companies and the state continually block civil society efforts to build a judicial-institutional framework that would allow for Indigenous peoples to be consulted. Procedures also have yet to be established to ensure due process in case their consent is not granted. The mining law currently in force in Guatemala makes no reference to the right to be consulted.
Mining Projects in Guatemala
Since the 1990s, Guatemala’s Ministerio de Energía y Minas (Ministry of Energy and Mines—MEM) has approved 118 metallic mining exploration and exploitation licenses. More than half of these concessions are located in Indigenous areas, and none have involved an official consultative process.
During the administrations of President Óscar Berger (2004–2008) and Álvaro Colom (2008–2012), a moratorium on mining licenses was established. Mining companies, government officials and Indigenous organizations attempted to find a way forward but did not reach an agreement. The dialogue was disbanded and the moratorium was lifted. The government of President Otto Pérez Molina is now in the process of approving an additional 387 exploration and exploitation licenses for metallic mining.
One complaint is that inaccurate information has been presented to affected communities about the scope of the projects. During the exploratory phase of the largest mine operating in Guatemala—the Marlin Mine, owned by the Canadian company GoldCorp, Inc.—prospectors told the Maya-Mam indigenous community that their activities were aimed at establishing an orchid plantation.
Without official processes, Indigenous organizations have organized 65 public consultations based on domestic and international legislation. These consultations are diverse in their legal and cultural foundations, and range from informal “consultas de vecinos” (“neighborhood consultations”) regulated by municipal law, to more formal consultations that meet ILO 169 specifications.
Typically, Guatemala’s Indigenous and civil society organizations work together to organize a consultation petition and then present it to the local municipal government. Once the petition is approved, community members are summoned to a public space, and in the presence of independent lawyers, municipal authorities, and national and international observers, they are asked (often over a megaphone) if they wish to allow mining and/or hydroelectric dams in their territories. Following the collective response, registered voters line up to individually register their vote by signing or stamping their fingerprint in an official document.
In all 65 consultas that have taken place thus far, overwhelming majorities have voted “No” when asked whether they wish to allow extractive projects on Indigenous land. Over 1 million people, Indigenous and non-Indigenous, have expressed their opposition to mining and hydroelectric dams in their territories.
However, Guatemala’s Constitutional Court, in response to numerous appeals and espousing diverse legal interpretations, has repeatedly deemed these consultations to be legally non-binding. The court has ruled that the municipal codes allowing local consultations only apply to development and infrastructure decisions made at the municipal level. According to the Guatemalan Constitution, subsoil resources are the responsibility of the central government, falling outside the jurisdiction of municipalities. In terms of ILO 169 adherence, the court has ruled that these consultations do not constitute a veto.
National laws should be established define the process of consulta previa to give the consultation processes already underway legal certainty and resolve current and future disagreements. Establishment of a normative framework to regulate Indigenous and non-Indigenous peoples’ right to be consulted on megaprojects in their land and communities would allow the country to mitigate mining conflicts.
