Guatemala’s Highest Court Denies Justice to Indigenous Peoples Affected by Mining

Source: 
Center for International Environmental Law (CIEL) - Western People's Council (CPO) - MiningWatch Canada

(Washington, D.C./Guatemala City/Ottawa) – On March 1, Guatemalan national press reported that the country's highest court upheld the 1997 Mining Law against a constitutional challenge brought by the Western Peoples’ Council (CPO) for lack of prior consultation with indigenous peoples. The ruling, coming a year after the complaint was filed, contradicts Guatemala’s international human rights obligations, and represents a set back from a 2011 Constitutional Court decision that ruled in favor of the right of Guatemala’s indigenous majority to consultation on legislative proposals that could affect their lands and natural resources.

Guatemala’s mining sector has been the source of continual conflict, which, in recent months, has seen an increase in threats, criminalization and violence. With over 400 mining licenses issued and more than 700 pending, lack of respect for free, prior and informed consent is at the root of much of the tension.

Under Guatemala’s Peace Accords, the American Convention on Human Rights, and as a signatory to the International Labour Organization Convention No. 169 on the rights of indigenous and tribal peoples, as well as having endorsed the United Nations Declaration on the Rights of Indigenous Peoples, Guatemala is obliged to respect the right of indigenous peoples to free, prior and informed consent for any project that could adversely impact them, and to consult with them before passing laws or administrative initiatives that would affect their rights.

“This ruling is a contravention of Guatemala’s international obligations to respect indigenous rights and an unwelcome reminder of how the Guatemalan legal system continues to deny justice to the country's Mayan population,” said Kris Genovese, senior attorney at the Center for International Environmental Law.

In December 2011, in a step toward respect for such rights, the Constitutional Court overturned the government’s attempt to regulate prior consultation on the basis that it had not been consulted with indigenous peoples first. This month’s ruling is a disappointing reverse.

“Not only is this ruling a negation of justice, it is a negation of the existence of indigenous peoples' right to participate as political actors,” said Francisco Mateo Rocael, representative of the Western Peoples' Council. “We knew the odds of winning were against us in this case. Despite our strong legal arguments, economic and political powers continue to influence how justice is carried out in Guatemala.”

Notably, in August 2012, just over a month following a hearing on the constitutional challenge against the mining law, a group of Canadian parliamentarians and one Canadian senator traveled on a company-paid trip to Guatemala with the Chairman of the Board of Goldcorp. Goldcorp is one of the largest gold producers in the world and has one of its most profitable mines in Guatemala’s northwestern highlands. During the three-day junket, the Canadian group met with the Guatemalan legislative commission charged with mining legislation in the country.

“We don’t know what took place behind closed doors, but the timing was crucial given that the Constitutional Court decision was due,” says Jen Moore, Latin America Program Coordinator at MiningWatch Canada. “While it is Guatemala’s obligation to respect the rights of indigenous peoples living there, we also need to ask what role Canadian interests might have played behind the scenes that run contrary to Canada's responsibilities to promote respect for indigenous rights as well.”

The Western People’s Council, or CPO, will now bring this case to the Inter-American Commission on Human Rights. The CPO, a coalition of indigenous authorities and institutions from seven departments of Guatemala, has already organized nearly 60 community referenda, in which indigenous communities vote to decide whether or not to accept development projects on their lands. To date, over one million have voted against mining. A recent public opinion poll estimates that 66% of Guatemalans at large are opposed to mining.

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Center for International Environmental Law is committed to strengthening and using international law and institutions to protect the environment, promote human health, and ensure a just and sustainable society. CIEL is a non-profit organization dedicated to advocacy in the global public interest, including through legal counsel, policy research, analysis, education, training and capacity building.

MiningWatch Canada is a pan-Canadian initiative supported by environmental, social justice, Aboriginal and labour organizations from across the country. It addresses the urgent need for a coordinated public interest response to the threats to public health, water and air quality, fish and wildlife habitat and community interests posed by irresponsible mineral policies and practices in Canada and around the world.