Guatemala's Highest Court Denies Justice to Indigenous Peoples Affected by MiningPublished by MAC on 2013-03-19
Source: Statement (2013-03-15)
For earlier MAC article, see: Guatemala: More Mining Violence and Impunity
Guatemala's Highest Court Denies Justice to Indigenous Peoples Affected by Mining
Center for International Environmental Law (CIEL) - Western People's Council (CPO) - MiningWatch Canada Joint Press Release
15 March 2013
(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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• Amanda Kistler, Center for International Environmental Law, akistler(@)ciel.org, 202-742-5832
• Jen Moore, MiningWatch Canada, jen(@)miningwatch.ca, 613-569-3439
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.
News release archived online here.
Canadian and US Organizations Call for Investigation into Recent Violence at Canadian Owned Mines in Guatemala
5 March 2013
Canadian and US civil society organizations are calling for the International Commission Against Impunity in Guatemala (CICIG) to open an investigation to determine who is responsible for recent violence surrounding Tahoe Resources' Escobal mine site in order that the case be brought to justice.
Between January 11 and 12, three people were killed, including two members of the mine's private security company, and six other guards were injured.
The North American organizations flag deep concern that the current investigation could be prejudiced and that public allegations against community members defending their right to live in a healthy environment could put them at risk of further violence or otherwise subject them to groundless legal actions.
They also ask that reports from workers alleging that private security guards shot at them for protesting over unjust contracting practices at Goldcorp's Marlin mine be fully investigated and prosecuted.
Dr. Claudia Paz y Paz Bailey
Attorney General, Guatemala
February 28, 2013
Re: Recent violence at Canadian-owned mine sites
Dear Dr. Claudia Paz y Paz Bailey,
The below-signed organizations write to you with deep concern regarding news of recent violence at various mine sites during the week of January 7, and particularly that which took place at the site of Tahoe Resources's Escobal project late on the night of Friday, January 11, and early in the morning of Saturday, January 12. Goldcorp holds 40% of Tahoe Resources's shares and the Escobal project is operated locally by Tahoe's subsidiary Minera San Rafael.
We condemn this violence, calling for those responsible to be held to account. We are worried, however, based on public remarks and other indications that the investigation could be prejudiced by baseless accusations. The allegations against community members who are defending their rights, including the right to live in a healthy environment, put them at risk of further violence or otherwise subject to groundless legal actions. We ask that the International Commission Against Impunity in Guatemala (CICIG) open an investigation in order to determine who is responsible for the recent violence in Santa Rosa and in order that the case be brought to justice.
We understand that shortly before midnight on Friday, January 11 various electrical posts were intentionally damaged in Santa Rosa, leaving much of the department in darkness. Less than a half hour later, shots were heard and three people killed, including two members of the mine's private security company, while six other guards were injured.
Shortly following these events on January 11 and 12, the press reported that the Minister of the Interior, Mauricio López Bonilla insinuated possible links between these events and the local non-violent resistance to Tahoe Resources's project. In further statements, Mr. López Bonilla stated that local mine resistance has been infiltrated by actors associated with organized crime and drug trafficking. He went on to contend that social conflict caused by mining operations located throughout the country does not exist but rather is an expression of vandalism and delinquency. There is no evidence to date to suggest that local communities who have been peacefully insisting on their right to be consulted on Tahoe's Escobal mine project are involved in any of these alleged activities and to assert this publicly as the Minister has done could put them in danger of criminalization or violence.
For the last two years, local communities in San Rafael Las Flores and surrounding municipalities of Jalapa and Santa Rosa have peacefully demonstrated opposition to Tahoe's project, which despite not having an exploitation license, has nonetheless invested millions of dollars in the construction of mine infrastructure. In November 2012, the municipality of Mataquescuintla held a community consultation in which 96% voted against mining in the municipality. Efforts to hold a municipal-wide community consultation in San Rafael Las Flores were long thwarted through various attempts to criminalize local human rights activists and their legal advisors. On February 17, however, the community of San Juan Bosco held a community consultation in which 93% voted against the mining project. This is the first in a series of 26 consultations planned for communities in the municipality of San Rafael. The ongoing community-based resistance indicates that not only does the company not have the necessary permits to proceed with the mine, as it acknowledged in a January 14 press release, but it also lacks the social license to operate.
In addition, we would also like to express our deep distress regarding the incident that occurred on January 8, 2013 at Goldcorp's Marlin mine when workers reported that private security guards shot at them for protesting over unjust contracting practices, leaving five workers wounded. We hope that these acts will also be fully investigated and prosecuted.
Finally, we urge that the violence at mine sites in early January not be used as an excuse to militarize these areas, such as was recommended in recent statements made by Mr. López Bonilla. This course of action would most likely result in further repression of local populations.
In conclusion, we understand that such violence, which occurs with disturbing frequency in and around mine projects, whether nationally or foreign-owned, in Guatemala, is also a serious global issue. We are working to determine the degree of responsibility that US- and Canada- based companies have for the regular outbreaks of violence and repression in order to ensure that they are also held accountable.
We appreciate your time and consideration of this appeal and look forward to your response.
Atlantic Regional Solidarity Network (Canada)
BC CASA (Canada)
Maritimes-Guatemala Breaking the Silence Network (Canada)
Canada-Philippines Solidarity for Human Rights (CPSHR) (Canada)
Center for International Environmental Law (CIEL) (US)
Comité pour les droits humains en Amérique latine (CDHAL) (Quebec)
Guatemala Human Rights Commission (US)
Mining Justice Action Committee - Victoria (Canada)
Mining Justice Alliance - Vancouver (Canada)
Network in Solidarity with the People of Guatemala - NISGUA (US)
Rights Action (Canada/US)
The Social Justice Committee of Montreal (Quebec)
 Castañon, Mariela. "Cuarto órdenes de captura por ataque en mina San Rafael." La Hora 7 Feb. 2013. http://www.lahora.com.gt/index.php/nacional/guatemala/actualidad/173135-cuatro-ordenes-de-captura-por-ataque-en-mina-san-rafael
Erick Archila Dehesa
Minister of Energy and Mines
Ing. Fernando Castellanos
General Director of Mining
Marcia Roxana Sóbenes Garcia
Minister of the Environment and Natural Resources