MAC/20: Mines and Communities

Mayans Struggle to Have Their Rights Recognized

Published by MAC on 2005-06-18

Mayans Struggle to Have Their Rights Recognized

The Consultations in Sipacapa on June 18, 2005

Written by Daniel Vogt, Angela Fallow and Tanya Stroedel, all present in Sipacapa on June 18.

Background

Indigenous Guatemalans need mechanisms for the recognition of their rights. However, Guatemalan law has historically been biased against the indigenous Guatemalans. Convention 169 of the ILO is viewed as a beacon of hope in a legal jungle of discrimination and exclusion. This Convention was ratified in 1996 by the Guatemalan government; however it has been virtually non-enforced and most recently the government has excused itself from compliance saying that norms for compliance must be established prior to its application.

The Sipakapense Mayans in San Marcos, who believe that their rights have been violated by the Glamis Gold open pit mine, implemented a consultation mechanism, whereby the local municipality would be able to determine the future of open pit gold mining in their territory. Initially, the administration of the consultation process was the responsibility of the municipal government. However, once the municipal government was prohibited from participating in the consultation process by a lawsuit brought by the mining company, the Catholic Church, environmentalist NGO "Madre Selva", and Mayan NGO "Ajchmol" assumed responsibility for its implementation.

The legal basis for the implementation of the consultation was a hybrid instrument using both the Guatemalan Municipal Code and the Convention with the hope that the consultation results could be made binding regarding mining activity in Sipacapa.

Court Challenges

In two separate lawsuits, Glamis Gold and the Ministry of Energy and Mines challenged the legal basis for the consultation process and the possibility that the results may be binding throughout the jurisdiction.

Case One) Montana Exploradora, Glamis Gold's subsidiary in Guatemala, brought a case against the Municipal Government of Sipacapa resulting in an injunction, issued on June 15, prohibiting the municipal government from undertaking of the community consultation process. Their argument was that this hybrid model of consultation provides results beyond the jurisdiction of the Municipal Government and the Convention.

The core issue is whether the Municipal Government has the legal power to void a mining license within its territorial limits. The Guatemalan Constitutional Court will decide whether to uphold or dismiss the injunction within 15 days of its issuance. It appears likely that the injunction will be upheld.

Case 2) The Ministry of Energy and Mining presented a second case to the Constitutional Court arguing that the consultative process planned by the municipal government of Sipacapa was a violation of the Guatemalan Constitution because that model was not explicitly mentioned therein.

However, the Constitutional Court ruled that the consultation process planned by the municipality was constitutional, given that it was recognized by Convention 169. The court said that the consultative process is acceptable since it reflects a traditional method of indigenous problem solving.

The Consultations

The consultations occurred as planned on June 18th without the official support or participation of the municipal mayor or his council, who feared facing charges of violating a judicial order for participation the process.

In the consultative process there were two models used:

1. In the municipal centre, the local population decided to cast paper ballots, writing the word "Si" or "No" to indicate their opinion regarding the future of mining activities in the township. The results will be made public on June 21.

2. In 13 rural centres community assemblies were called and were conducted in 12. The traditional Mayan consensus building model was followed. In 1 of the 12 centres the results favoured mining and in 11 centres the opinion was of opposition. The initial interpretation seems that indigenous participants in the process tended to voice opposition to mining projects in the area, whereas non indigenous participants supported local mining activity.

The low level of participation was influenced by three factors: conflicting and confusing press reports prior to the consultation, street broadcasts and leafleting (attributed to the mining company) announcing that the consultation was canceled, and the rainy and cold weather. According to press reports approximately 2,600 persons participated in the consultation process, compared to 5,200 registered voters out of a total population of nearly 15,000. It remains unclear whether this level of participation will be recognized as "representative" of the population.

Legal and Political Impacts

The crux of the matter is whether the outcome of the consultations will be binding, as it is likely that the injunction against the Sipacapa town government will be upheld. Nonetheless, the question remains for Mayan peoples as to how to transform their will and demands into public policy.

Depending on how representative the results are deemed to be, they will likely be used as indicators of the levels of opposition to mining in the area and should be taken into account in future political plans.

It is not clear, however, how the local Mayan population will react to what would be perceived as a mockery of their rights, and the use of undue political clout by the mining company.

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