Communities Continue Legal Offensive against Guatemalan 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.”