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, reported by Guatemalan national press last March 1 of this year. Finally after the complaint was filed, the ruling comes out and it is against Guatemala’s international human rights obligations. It also represents a hold up 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 have an effect on their lands and natural resources.
Frequent conflicts had been repeatedly ongoing due to Guatemala’s mining sector. These conflicts caused an increase in threats, criminalization and violence in the past recent months. Despite having over 400 mining licenses issued and more than 700 pending, the tension was caused by lack of respect for free, prior and informed consent.
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 is all 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
“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.
More than a year ago back in December 2011 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 is supposed to be the first step toward respect for such rights but then again this month’s ruling is a disappointing turn around.
“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.”
A group of Canadian parliamentarians and one Canadian senator traveled on a trip sponsored by the company to Guatemala together with the Chairman of the Board of Goldcorp in August 2012 just after a month subsequent to a hearing on the constitutional challenge contra mining law. Goldcorp is one of the biggest gold manufacturers in the world and has one of its most cost-effective mines in Guatemala’s northwestern highlands. The Canadian group congregated with the Guatemalan legislative commission charged with mining legislation in the country during the three-day junket.
“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 Mining Watch 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 forward this case to the Inter-American Commission on Human Rights. The CPO is a coalition of indigenous authorities and institutions from seven departments of Guatemala. They have already well thought-out nearly 60 community referenda. This referendum will give indigenous communities the right to vote and decide whether or not to accept development projects on their lands.