Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

1. The Committee takes note of the Government’s detailed report and the attachments thereto. It also notes: (1) the third report on compliance with the Convention in Guatemala, produced by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Central Union of Guatemalan Workers (CGTG) on 2 November 2005; (2) general comments by the Government on the COMG’s communication received on 31 March 2005; (3) a communication of 21 January 2005 from the Union of Guatemalan Workers (UNSITRAGUA); and (4) the Government’s comments on the latter, received on 11 November 2005.

2. The Committee notes with interest that on 30 September 2005 a Guatemalan delegation, which was headed by the Vice-President of the Republic and included Rigoberta Menchu, winner of the Nobel Peace Prize, came to ILO headquarters in Geneva and made a request for technical assistance from the Office in connection with Convention No. 169 in relation to a number of disputes that have arisen regarding indigenous matters. The Government says that it is anxious to overcome the systematic exclusion of indigenous peoples from decision-making regarding policy and to find solutions to disputes (usually about land) and to establish better machinery for consultation.

3. The Committee also notes that in November 2005 the Governing Body declared receivable a representation submitted by the Federation of Rural and Urban Workers under article 24 of the ILO Constitution alleging non-compliance by the Government with some provisions of the Convention.

Articles 6 and 7 of the Convention. Consultation and participation

4. The Committee takes note of the information in the above third report by the COMG. According to the report, indigenous peoples constitute the largest population in Guatemala and the main workforce and that their rights need to be fully recognized. Efforts are made sporadically towards providing an institutional basis for participation of indigenous peoples; a number of judicial decisions and other measures give effect to the Convention, but the COMG  emphasizes that there is no coherent policy on institutions that combines political, administrative and financial measures to attain the objectives of the Convention. The report indicates that participation continues to be symbolic and the political and electoral system remains an instrument of exclusion. The report indicates that there is no specific institutional machinery for consultation and that, during the previous administration, 31 concessions were granted for the exploitation of mineral resources and 135 for exploration, with no prior consultation with the indigenous peoples as to the viability of such activities or their environmental impact. These activities are still ongoing and there are no programmes to curtail the impact of the prospecting and exploitation or to compensate communities which may be adversely affected.

5. In its comments on the above report, the Government indicates that indigenous participation is being strengthened, and that the last few months of 2004 saw the establishment of a preparatory body of the Advisory Council on Indigenous Peoples and Pluri- and Inter-culturalism the task of which is to set up a Standing Advisory Council to advise the Government on public policy governing indigenous matters. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was established. According to the Government, indigenous participation in political parties is a slow process but headway is being made, though it must be acknowledged that the parties need to revise their objectives and enhance participation and that the indigenous peoples ought to make more substantive proposals rather than formal ones. The Government acknowledges that there are no consultation mechanisms and that one of the main items on the agenda of the Joint Committee on Reform and Participation is the drafting of a "Bill on the consultation of indigenous peoples".

6. The Committee observes that since 1998 it has been requesting information on the consultation machinery set up pursuant to the Convention. It draws the Government’s attention to the fact that the provisions on consultation, particularly Article 6, are the core provisions of the Convention and the basis for applying all the others. Consultation is the instrument that the Convention prescribes as an institutional basis for dialogue, with a view to ensuring inclusive development processes and preventing and settling disputes. The aim of consultation as prescribed by the Convention is to reconcile often conflicting interests by means of suitable procedures. The Committee notes with interest that the Government has given this situation attention by seeking technical assistance from the Office in order to give effect to the Convention’s provisions on consultation. It invites the Government to continue along this path and hopes that next year it will be in a position to provide information on the legislative and practical measures taken to give effect to this key aspect of the Convention.

Article 15, paragraph 2. Communication from UNSITRAGUA
alleging failure to consult the peoples concerned to ascertain
whether and to what degree their interests would be prejudiced
by the granting of permits  to Montana-Glamis Gold

7. The Committee notes that, according to UNSITRAGUA, the Government recently granted a permit for mining prospection and exploitation in the departments of San Marcos and Izábal to Montana Exploradora S.A., a subsidiary of the Canadian mining company Glamis Gold. UNSITRAGUA indicates that the area involved contains two of Guatemala’s main lakes - Atitlan and Izábal - where there are eco-tourism resorts. Mining operations, which would require 250,000 litres of water per hour, would place the potable water supply under serious risk of pollution. Furthermore, despite opposition to the mining activities by the population of Sololá and San Marcos, in an act of intimidation the Government allowed the company’s equipment to be brought in under the escort of 1,300 members of the police and the army. This operation began on 11 January 2005. The local population staged public protests and blocked the road. According to UNSITRAGUA, the Government stated that the people were armed, although no weapons were seized. However, one villager died and many others were injured.

8. UNSITRAGUA emphasizes that the death is the consequence of a mining policy imposed - without prior consultation - on the premise that corporate interests rank higher than social interests and respect for the land, culture, beliefs and opinions of the indigenous peoples of Guatemala and even their lives. The Committee asks the Government to provide information on what occurred, indicating whether the persons responsible have been identified, tried and punished.

9. In its response, the Government indicates that Guatemalan legislation requires environmental impact studies to be carried out and submitted before any type of prospecting or exploitation permits are granted. The requisite studies were submitted by the Directorate General for Management of the Environment and Natural Resources of the Ministry for the Environment and Natural Resources which approved by resolution No. 779-2003/CRMM/EM the study submitted by Montana Exploradora. The permit was granted in the Department of San Marcos, but not in Izabál, and UNSITRAGUA’s communication fails to explain how the damage to lakes Atitlan and Izabál was caused. The Government concedes that there is no institutional machinery for consultation with the indigenous peoples, but indicates that approaches have been made to the indigenous communities. For example, it cites the organization of the First National Forum on Mining in 2005 and indicates that the Forum’s 11 promoters sent the Government the ten main conclusions of the meeting. The Government also reports that a High-level Commission has been set up with representatives of the Government and the Catholic Church and that in August 2005 an understanding was signed seeking amendment of the Mining Act with regard to compensation, environmental health and consultation of indigenous peoples. The Government also points out that Guatemala has already sought ILO technical assistance to resolve the problems of holding consultations with indigenous peoples within the framework of the Convention. According to the report, the Government acknowledges that "the violence occurred owing to the transport of the machinery carried out in compliance with authorizations properly issued by the competent authority".

10. The Committee notes that the above communication refers to a lack of consultation in the manner prescribed by the Convention regarding the use of natural resources. The relevant provision is Article 15, paragraph 2, in conjunction with Articles 6 and 7 of the Convention. Article 6 refers to the procedure for consultation, Article 7 to the process of development and Article 15, paragraph 2,  governs consultations on natural resources in particular and sets the objective of consultation: "ascertaining whether and to what degree [the] interests [of these peoples] would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of (…) resources pertaining to their lands".

11. The Committee observes that the Government does not deny the alleged lack of consultation and indicates that the company carried out an environmental impact study that was approved by the relevant government department. The Committee also notes that the villagers protested against the mining project and the violence that occurred. Further, the Committee notes the concerns expressed by the Office of the Human Rights Ombudsperson of Guatemala in its report of May 2005 on mining activities. The Office of the Ombudsperson refers explicitly to the project criticized by UNSITRAGUA and expresses concern of the risks of opencast mining and in particular the method used, namely leaching by cyanide. The report indicates that this type of process has had detrimental consequences on the environment and health in other countries, has been prohibited in other regions of the world and its potential impact could harm: (1) water sources; (2) air quality through the emission of particles; and (3) the use and fertility of the soil which is permeated by cyanide compounds. The Committee draws the Government’s attention to the fact that these types of risks should be the subject of consultations, as set out in Article 15, paragraph 2, in conjunction with the studies required by Article 7, paragraph 5, of the Convention.

12. The Committee recalls that the Convention lays down certain requirements to ensure that the exploration and exploitation of natural resources comply with the Convention. It draws the Government’s attention to the fact that these requirements were not fulfilled in the case of the permit referred to by UNSITRAGUA.

13. The impact study carried out by the company is no substitute for the consultations required by Article 15, paragraph 2,. This provision stipulates that "governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands". As the Committee has pointed out in other similar cases, responsibility for consultation lies with the Government, not the company. Furthermore, in establishing or maintaining procedures, governments must take into account the procedural requirements laid down in Article 6 of the Convention and the provisions of Article 7 of the Convention, according to which "Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities."

14. The Committee accordingly invites the Government to carry out consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15, paragraph 2,  of the Convention. The Committee also asks the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7 of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Please supply detailed information on this matter, taking into account the fact that the Office of the Human Rights Ombudsperson has expressed concern about the award by the Government without consultation of 395 exploration and exploitation permits, some 200 of which are reported to be in the process of being approved.

15. In conclusion, the Committee notes that the two above communications refer to problems and disputes arising from the lack of machinery for consultation. It also notes that this has become a matter of special interest in Guatemala, and that the Government has taken significant steps towards finding a solution, as shown by the information supplied by the Government on the National Forum on Mining, the understanding signed with the Catholic Church and the Government’s request to the Office for assistance in establishing a framework for consultation with the indigenous peoples in the context of the Convention. Stressing that consultation is the key to all other provisions of the Convention, and reaffirming that this is the instrument of dialogue provided for in the Convention as a foundation for an inclusive development process, the Committee urges the Government to step up its efforts to take all the necessary measures, in consultation with the indigenous peoples and with the technical assistance of the Office to give effect in law and practice to Articles 6, 15, paragraph 2, and 7 of the Convention. The Committee hopes the Government will be in a position to provide detailed information on the measures taken and the progress achieved in this regard in 2006.

The Committee is sending a request directly to the Government on related matters and on other points.

[The Government is asked to reply in detail to the present comments in 2006.]