(Washington D.C./Guatemala City) Today, Guatemala’s Constitutional Court will hear a case challenging the constitutionality of the 1997 mining law for failure to consult with the country’s indigenous peoples who make up more than half the population. The lawsuit, filed by the Western Peoples Council (CPO), contends that both national and international law require that the government consult with indigenous peoples before approving policies with significant impacts on their territories.
Three weeks ago, President Otto Pérez Molina proposed controversial reforms to the current law, including direct state participation in mining projects. He also lifted the previous administration’s moratorium on the approval of new concessions. The moratorium dates back to 2008 when the Constitutional Court ruled that seven articles in the mining law are unconstitutional, stalling approval of any new licences until national consensus could be reached on mining reforms.
Only six months into its mandate, the administration of Pérez Molina has already approved 68 new exploration and exploitation licences. In total, 387 mining concessions have been granted with another 734 pending, many on indigenous territory.
“In 1996, the Government of Guatemala ratified the International Labour Organization’s Convention 169 on the rights of indigenous peoples and signed the Agreement on the Rights and Identity of Indigenous Peoples as part of the Peace Accords. Its obligation to respect the rights of indigenous peoples in this country is long overdue,” said Francisco Mateo Morales of CPO. “This is a historic opportunity for Guatemala’s highest court to uphold indigenous rights.”
The lack of prior consent and consultation at the project and policy level is at the root of much conflict and violence in Guatemala’s mining sector. Over 70 municipalities have held referendums in which nearly a million people having voted against mining in their territories, but neither the government nor mining companies have respected the results. Meanwhile, targeted attacks and criminalization against those opposed to mining has intensified.
In Guatemala’s northwest, Goldcorp’s Marlin mine has been the site of conflict since prior to going into operation in 2005 and multiple international human rights bodies have recommended its suspension for failure to obtain the consent of affected Maya Mam and Sipakense indigenous peoples, as well as threats to local water supplies and public health. A People’s Health Tribunal also found last week that Goldcorp should suspend its operations as a result of such risks.
In eastern Guatemala, in the municipality of El Estor, the dispute over the Fénix nickel mine has led to three lawsuits against HudBay Minerals in Canadian courts, arising from the rape of eleven women during a violent eviction of the community of Lote Ocho in January 2007, and the murder of community activist Adolfo Ich and wounding of Germán Choc in September 2009.
Near the capital city, community members from the municipalities of San José del Golfo and San Pedro Ayampuc are sustaining a now four-month blockade against the entry of Vancouver-based Radius Gold. Local spokespeople have filed repeated complaints for threats received, while Yolanda Oquelí was recently shot and wounded in a drive-by attack when leaving the blockade on June 13th.
In the southwestern municipality of San Rafael de las Flores, at the site of Tahoe Resources’ Escobal project, community members who gathered some 1,000 signatures for a local referendum over mining were forced out of the committee responsible for overseeing the consultation process.
“International law clearly protects the rights of indigenous peoples to be consulted over legislation that affects their territories,” said Kris Genovese, Senior Attorney with the Center for International Environmental Law in Washington D.C. “A favourable ruling in this case is a necessary step to address existing conflicts and to demonstrate to the international community that the rule of law exists in Guatemala.”
The Constitutional Court will have twenty days to rule on the case after the hearing. In the event that the Court does not rule in their favor, the CPO will bring the case before the Inter-American Commission on Human Rights, having exhausted all domestic recourse to halt violations to human and indigenous rights as a result of the mining law.