Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes the comments made on the application of the Convention by the Union Movement, Guatemalan Indigenous and Agricultural Workers for the Defence of the Workers’ Rights, of which the General Confederation of Workers of Guatemala (CGTG) forms a part; the Trade Union Confederation of Guatemala (CUSG); the National Trade Union and Peoples’ Coordinating Body (CNSP); the National Federation of Trade Unions of Public Employees of Guatemala (FENASTEG); the Trade Union Federation of Farm Workers (FESOC); the Trade Union of Health Workers of Guatemala; the Eastern Distribution Workers’ Union and the Trade Union Confederation of Guatemala (UNSITRAGUA). These comments were received on 31 August 2008 and forwarded to the Government on 17 September 2008. The Committee notes that the Government has not yet provided its comments on this communication. The Committee also notes that the Government’s report was received on 25 September 2008, too late to be fully examined at this session, and that the report replies to its comments of 2006, but not to those of 2007, in which the Committee requested information on the effect given to the Recommendations made by the Governing Body in its report of June 2007 (document GB.299/6/1) on the lack of prior consultation regarding exploratory mining activities and the lack of land regularization.

Sacatepequez and cement company. State of emergency. The communication refers to the award of a licence in the Sacatepequez case, in which a cement company is trying to forcibly implement a mining project, despite the fact that exploratory mining was totally rejected by the community, with 8,936 votes against and four in favour. It indicates that, due to the opposition of the indigenous peoples, the Government has declared a state of emergency and deployed armoured vehicles and 300 police officers and soldiers. They also indicate that, with regard to the same company and region, the Kaqchikel ethnic group is opposing exploitation without consultation in Los Trojes due to the major environmental impact that exploitation would have, affecting that population. The communication also indicates that, under Presidential Decree No. 3-2008, a state of emergency was declared for the second time in order to impose the establishment of a cement plant without consultation. Such measures allowed the suspension of fundamental rights such as the right of assembly and the right not to be detained without an order by a competent court. As a result, the unions considered that social protest was criminalized. The Committee notes that the issues raised relate to the imposition of a mining project, apparently without consultation, and the imposition of a state of emergency with liability on fundamental rights and guarantees. With regard to mining, the Committee considers that, in order for any exploitation of natural resources to be consistent with the Convention, the rights to participate and be consulted as laid down in Articles 6, 7 and 15 of the Convention have to be applied before decisions are taken. The Committee requests the Government to provide information on the manner in which Articles 6, 7 and 15 were applied in this case. With regard to the state of emergency, the Committee requests the Government to provide information on the reasons for that declaration, its possible connection with the indigenous conflict and the specific rights that were suspended or limited during that period. It also requests the Government to adopt special measures as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned in accordance with Article 4 of the Convention and to provide information in this regard.

Land and wages. It is indicated in the communication that the rights over lands, recognized in the Convention, are being violated and the cases of the following estates are mentioned: Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim. It is also indicated that the traditional occupation of indigenous peoples is not recognized and that in addition, having been employed on their own lands, their wages were not paid and they were violently removed and their ranches burned. The trade unions further claim that, in the case of the Finca Sataña Saquimo, the indigenous villagers had purchased the land and had a public instrument to prove it, but this did not prevent their removal. The communication states that the public authorities failed to intervene even though they were fully aware of the situation. The Committee recalls that in the report of the Governing Body mentioned above, it was indicated that, although the regularization of lands takes time, indigenous peoples should not be adversely affected by the duration of this process and it requested the Government to adopt transitional measures in order to protect the land rights referred to in Article 14 of the Convention, while the regularization process is being completed. Consequently, the Committee requests the Government to take the necessary transitional protection measures concerning the lands referred to in Article 14 of the Convention and concerning the wages due, and to provide detailed information on this matter, including on the case relating to the lands for which the indigenous peoples state that they have a public instrument proving their rights.

Participation and consultation. It is indicated in the communication that, despite the comments made by the Committee in 2005, 2006 and 2007 concerning the mining exploitation of the Montana Company, the Government has continued to award mining licences without consultation and, in particular, it has not compensated the indigenous people for the damages sustained nor made efforts to reduce the impact of the exploitation. According to the communication, Article 15 of the Convention on consultation and natural resources is not applied, a land register has not been kept in order to establish when a territory is indigenous, there is no legislation on consultation with indigenous peoples, and they are discriminated against by the courts. The Committee notes that the persistence and recurrence of the matters covered by the communications indicate that in Guatemala suggest the existence of serious problems with regard to the implementation of the aforementioned Articles of the Convention, related to lands, natural resources, consultation and participation. The same matter was dealt with in document GB.299/6/1 mentioned above. The Committee is aware of the complexity of the matter but recalls that the Government must take the necessary steps towards the creation of the bodies and mechanisms provided for by the Convention, which will in turn facilitate the resolution of disputes by means of dialogue with the inclusion of indigenous peoples in plans and projects which may affect them directly. The system of consultation and participation established by the Convention with regard to natural resources is to be based on the participation of the indigenous peoples in the formulation of plans and programmes as provided for by Article 7 of the Convention. Belated consultation after the plans of the region have already been defined without the participation of the indigenous peoples would not be effective. The Committee exhorts the Government to examine the matter of natural resources from the point of view of Articles 2, 6, 7, 15 and 33 of the Convention. The Committee asks the Government to take into account, in particular, that, according to Article 7(1) of the Convention, indigenous peoples “shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly”. The Committee requests the Government to neither grant nor renew any licence for the exploration and exploitation of natural resources as referred to in Article 15 of the Convention while the participation and consultation provided for by the Convention are not being carried out, and to provide information in this regard.

Legislation. The Committee recalls that for a number of years, the Government had indicated its willingness to adopt a law on consultation. The Committee once again encourages the Government to make progress in the formulation and adoption of a law on indigenous peoples’ consultation and of appropriate regulations regarding 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, and participation in accordance with Article 7 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 inclusive development. The Committee asks the Government to provide information on the progress made regarding the elaboration and adoption of a law on consultation.

The Committee invites the Government to provide its comments on the communication received and to reply to the present comments and the comments made by the Committee in 2007.

[The Government is asked to reply in detail to the present comments in 2009.]