Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

1. The Committee notes that, in June 2007, the Governing Body adopted the report on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1). The representation involved allegations of a lack of prior consultation of the people concerned regarding the award of a licence (No. LEXR-902 of 13 December 2004) to the Izábal Exploration and Mining Corporation (EXMIBAL) to begin exploratory mining for nickel and other minerals in the territory of the indigenous Maya Q’eqchi people. The other crucial aspect referred to by the parties was the legal situation with regard to the lands. The FTCC claimed that it was not coherent that, on the one hand, the Government sells the lands to the communities and, on the other hand, cedes them under licence to mining companies. The Government stated that, if the communities do not own the land, there is no obligation to engage in consultations, and submitted that it was necessary for the communities or their members to hold titles of ownership to be eligible for consultations.

2. The Committee notes the recommendations made by the Governing Body, calling on the Government to take measures and supply information for examination by the Committee of Experts on the following matters:

(a)    to give full effect to Article 15 of the Convention and to engage in prior consultation in cases of exploration or exploitation of natural resources which may prejudice indigenous and tribal communities, and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans;

(b)    to endeavour to resolve any consequences of the granting of the exploration licence including by assessing, in consultation with the communities concerned, whether and to what degree their interests have been prejudiced, and where such prejudice is found, to ensure that fair compensation is provided, in accordance with Article 15, paragraph 2, of the Convention. It hopes that, in seeking solutions to the problems affecting communities which occupy or otherwise use lands for which the licence covered by the representation has been granted, the Government should go through representative institutions or organizations so as to be able to establish and maintain a constructive dialogue under the terms of Article 6 so that the parties concerned can seek solutions to the situation faced by these communities, taking into account for this purpose paragraph 53 above;

(c)    to initiate a process of consultation before granting any exploration and exploitation licences covering the lands referred to in the representation and to maintain consultation and participation procedures with all the communities concerned which occupy or otherwise use these lands, whether or not they hold title of ownership, taking into account for this purpose paragraph 53 above;

(d)    in consultation with indigenous peoples, to take the necessary measures to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention;

(e)    in consultation with indigenous peoples, to adopt transitional measures to protect these rights while the process of the regularization of title to lands is being completed;

(f)    to develop coordinated and systematic action, within the meaning of Articles 2 and 33, with the participation of indigenous peoples, when applying the provisions of the Convention;

(g)    to make progress in the formulation and adoption of the Indigenous Peoples Consultation Bill and the appropriate regulation of consultations to be undertaken in the case of exploration or exploitation of natural resources (minerals, forests, water, etc.), in accordance with Article 15 of the Convention; this would foster the development of appropriate mechanisms for consultation and participation, thereby attenuating disputes relating to natural resources and laying the foundations for promoting processes of inclusive development.

3. The Governing Body also invited “the Office to pursue its technical assistance and cooperation with the Government so as to facilitate the establishment of the process of consultation envisaged in points (a), (b) and (c) above and to assist the Government in the formulation of the legislation referred to in point (g) above”.

4. The Committee requests the Government to supply detailed information in its next report on the action taken further to the abovementioned recommendations, together with its reply to the comments made by the Committee in 2006.