Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the observations from the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) and the National Union of Health Workers of Guatemala (SNTSG) dated 30 August 2010. The Committee also notes the observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) of 30 August 2010 and 30 August 2011. The Committee further notes the observations of the International Organisation of Employers (IOE) dated 19 October 2011. The Committee requests the Government to send its observations in this regard.

Follow-up to the recommendations of the tripartite committee (representation under article 24 of the Constitution of the ILO, GB.299/6/1, June 2007). The Committee recalls that the representation refers to the lack of prior consultation of the peoples concerned with regard to the licence for exploratory mining for nickel and other minerals (No. LEXR-902) awarded to the Mineras Izabal SA company in December 2004 for starting mining exploration activities in the territory of the Maya Q’eqchi indigenous people. The Committee notes with regret that the Government once again has not sent its observations on this matter. The Committee urges the Government to send detailed information in its next report on the action taken further to the recommendations of the Tripartite Committee.

Articles 6, 7 and 15. Right to consultation. The Committee has been referring for a number of years to the need to establish institutional mechanisms for consultation and participation. The Committee notes that the MSICG and the SNTSG, on the one hand, and the CACIF, on the other, refer in their comments to the need to establish a consultation procedure. The Committee observes that the national legislation contains provisions which regulate the right of consultation in a fragmented or incomplete manner, namely: the 1995 Agreement on Identity and Rights of Indigenous Peoples (Peace Agreements); article 173 of the Constitution of the Republic; section 26 of the Act concerning urban and rural development councils (Decree No. 11-2002, which provisionally regulates consultation pending the adoption of national legislation) and the Municipal Code (Decree No. 12 2002). The Committee notes that the municipal authorities and indigenous communities, on the basis of the abovementioned provisions, have undertaken a series of consultations at the communal level which were not conducive to effective dialogue among the interested parties and resulted in conclusions that were not recognized by the national public authorities or the enterprises. This situation has resulted in greater unrest. In this regard, the Committee notes with interest the ruling of the Constitutional Court of 21 December 2009 (case No. 3878-2007), which examines this issue and establishes that although these consultations are useful for understanding the general views of those consulted with regard to the exploration and exploitation project while also constituting a kind of citizens’ participation, they do not give effect to the right of consultation established in the Convention. The Committee notes the Court’s affirmation that it is for the State to guarantee the effective application of the right of consultation, which, according to the Court, must take the form of prior consultation and not be restricted to mere information, must consist of a genuine dialogue between the parties with the aim of reaching a joint agreement, and must take place in good faith as part of a procedure that enjoy the confidence of the parties and involving the representative authorities of the indigenous peoples.

Legislation relating to consultation and participation. In its previous comments the Committee noted the existence of various legislative drafts relating to consultation which were awaiting examination by the Congress of the Republic. The Committee understands that these bills are currently being examined by Congress. The Committee notes that, further to a request from the Government on 26 July 2010, an ILO technical assistance mission visited the country from 23 to 27 August 2010 in order to provide assistance with drawing up a roadmap so that both the indigenous communities and the authorities have a better understanding of the Convention and to offer guidance on the drafting of a bill and its regulations for the application of the Convention. The Committee notes that, according to the report, the mission had the opportunity to meet numerous government entities, social partners, indigenous organizations and their representatives, and two private companies. The Committee notes with concern the high degree of social conflict observed by the mission, and recognized by all sectors, relating to the exploitation of natural resources. The Committee notes that, according to the mission report, all sectors also recognize that the lack of a consultation mechanism and the lack of specific consultation with regard to the abovementioned draft legislation as provided for in the Convention are the main reason for the existing unrest. The Committee also notes that during the technical mission the Government presented a draft of the “Regulations governing the ILO Convention No. 169 consultation process” on which the ILO made comments. This draft was already presented to the public by the President of the Republic on 23 February 2011 and opened for a period of consultation with the indigenous peoples. However, on 24 May 2011 the Constitutional Court granted provisional amparo (legal protection of constitutional rights) and temporarily suspended the consultation procedure launched by the President of the Republic with regard to the regulations. The Committee understands that the Constitutional Court has not issued a definitive ruling on this issue. The Committee notes that the CACIF refers to the draft regulations and indicates that these were drawn up with the participation of the indigenous peoples and the employers. The CACIF regretted that some sectors of the indigenous peoples instituted amparo proceedings, thereby causing the suspension of the consultation procedure regarding the regulations.

While noting the decision of the Constitutional Court resulting in the suspension of the consultation process, the Committee stresses that despite the time that has elapsed no consultation mechanisms have yet been adopted, as provided for in the Convention. Even though it considers that the right of indigenous peoples to be consulted on each occasion that measures are planned which are likely to affect them directly derives directly from the Convention, regardless of whether or not this right is reflected in any specific national legislation, the Committee considers that this legal vacuum prevents the interested parties from holding a constructive dialogue with regard to projects for the exploration and exploitation of natural resources. The Committee considers that the establishment of effective consultation and participation mechanisms contributes towards preventing and resolving disputes through dialogue and reduces social tensions. The Committee recalls that in order to establish this mechanism and for any specific consultations it is essential that there is a climate of mutual trust. The Committee also emphasizes that the obligation to ensure that indigenous peoples are consulted in conformity with the Convention rests with the Government (see general observation 2010). It also underlines the fact that the provisions of the Convention regarding consultation must be read in conjunction with Article 7, which establishes the right of indigenous peoples to decide their own priorities for the process of development and to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. The Committee therefore:

• (i) requests the Government to take the necessary measures without delay to establish an adequate mechanism for consultation and participation in conformity with the Convention, taking account of the general observation of 2010;
• (ii) requests the Government to ensure that indigenous peoples are consulted and can participate in an appropriate manner, through their representative bodies, in the establishment of this mechanism in such a way as to be able to express their opinions and influence the final outcome;
• (iii) requests all the parties concerned to do their utmost to participate in good faith in the abovementioned process, with a view to pursuing a constructive dialogue that enables positive results to be achieved;
• (iv) requests the Government to send information on any further developments in this respect, on progress made with regard to the pending draft legislation before the Congress of the Republic and on the final decision of the Constitutional Court concerning the amparo appeal against the consultation procedure on the “Regulations governing the ILO Convention No. 169 consultation process”;
• (v) observing that section 26 of the Act concerning urban and rural development councils provides for a provisional mechanism for consultation of the indigenous peoples pending settlement of the issue at the national level, requests the Government to supply information on the application of the aforementioned section in practice;
• (vi) requests the Government to take the necessary measures to bring existing legislation, including the Mining Act, into conformity with the Convention.

Development of the consultation process in specific cases: San Juan de Sacatepéquez (cement company), municipalities of Sipacapa and San Miguel de Ixtahuacán (Marlin mine). With regard to the construction of the cement manufacturing company in San Juan de Sacatepéquez, the Committee referred in its previous comments to the permit granted by the municipality of San Juan de Sacatepéquez for the installation of the company despite opposition from most of the local population expressed in the course of public consultation. The Committee notes that the MSICG refers to this matter in its observations. The Committee also notes that the technical assistance mission visited the municipality of San Juan de Sacatepéquez and the cement company and observed that there was an extremely conflictual situation in which dialogue was hampered by the total lack of mutual trust between the parties. The Committee notes the Government’s statements that: (1) the permit for installation of the cement company was granted after the technical studies and the environmental impact study had been carried out; (2) it does not recognize the public consultation conducted in the municipality and refers to the ruling of the Constitutional Court mentioned above; (3) under the National Dialogue System, an extended process of dialogue and information between the company and representatives of the local communities was launched in April 2008. Since that date four round tables for dialogue have been held and numerous meetings have taken place at which various agreements have been reached; (4) owing to the intransigence of one sector of the indigenous communities it has not been possible to build “on the state decision-making processes” and the Government emphasizes that the construction of the cement manufacturing plant has not yet started. The Committee notes that the CACIF observations corroborate the information supplied by the Government and refer to the high quality standards of the company, whose sole focus at present is on social investment in the region, skills training for the population and local reforestation.

As regards the award of a mining exploration and exploitation licence to the Montana Exploradora de Guatemala SA company without consultation of the indigenous peoples concerned, the Committee notes the technical assistance mission’s observation that this is another situation of great conflict which it witnessed. The Committee notes the indication in the observations from the CACIF that the exploitation licence was awarded in 2003 after the submission of the environmental impact study, which was made public and encountered no opposition; that the company began its operations in 2005, generated 9.1 million dollars in levies for 2005–09, paid 31.5 million dollars in taxes and is implementing more than 150 social investment projects relating to educational, sports and healthcare infrastructure. The CACIF adds that the company obtained certification in 2009 from the International Cyanide Management Institute (ICMI) to the effect that the company fulfils the requirements of the International Cyanide Management Code, that it recycles 99 per cent of the water that it uses, undertakes monthly monitoring of water and air quality and noise levels, and has adopted measures for the reforestation and rehabilitation of the land used. The Committee notes the Government’s statement that the exploitation of the Marlin mine does not affect the lakes of Atitlán and Izabal in any way, contrary to claims made, since the lakes are a long distance from the mine, and that the company undertook a thorough process of communication and consultation with the communities in the area affected by the mine. The Government includes detailed information on the process and also the list of information meetings held with the communities concerned. It also adds that the mining operations are inspected closely.

The Committee also notes that the Inter-American Commission on Human Rights (IACHR), in Decision No. MC 260/07 of 20 May 2010, imposed protective measures with regard to this issue and requested the State of Guatemala to suspend mining operations connected with the Marlin I project and other activities connected with the licence awarded to Goldcorp/Montana Exploradora de Guatemala SA and to take effective measures to prevent environmental pollution pending the adoption of a decision by the IACHR concerning the substance of the petition linked to the application for protective measures.

While recognizing the forums for company-community dialogue promoted by the Government in both cases and also the numerous measures and activities implemented by the companies in question for informing the communities about the projects, the Committee considers that these cannot be deemed to constitute the full-scale procedures for consultation of indigenous peoples prescribed by Article 6 of the Convention. As the Committee has indicated on numerous occasions, consultation is not just the holding of mere information meetings but necessarily entails genuine dialogue between the parties concerned involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a joint agreement. The Committee underlines the importance of mining projects yielding tangible benefits for all parties concerned and that these parties have a clear perception of such benefits. The Committee therefore:

• (i) urges the Government once again, in the context of the existing disputes relating to the planned installation of the cement company in San Juan Sacatepéquez and the mining exploration project in the municipalities of Sipacapa and San Miguel de Ixtahuacán (Marlin mine), to establish mechanisms for dialogue which have the confidence of the parties and, through good faith negotiations and in accordance with Articles 6 and 15 of the Convention, enable appropriate solutions to be found to each of these situations that take account of the interests and priorities of the indigenous peoples. The Committee requests the Government to send detailed information on any further developments in this regard;
• (ii) requests the Government to take the necessary steps to encourage all parties concerned with the two projects to participate in a constructive manner in such a dialogue;
• (iii) urges the Government to ensure that neither of these two projects has a harmful impact on the health, culture and property of the communities living in the areas affected by the implementation or planning of the projects and draws the Government’s attention to Article 7(3) and (4) of the Convention;
• (iv) requests the Government to take all the necessary measures to guarantee the integrity of persons and property in the regions affected by the projects and ensure that all the parties concerned refrain from any acts of intimidation or violence against persons who do not share their views on the projects.

The Northern Transversal Strip project. The Committee notes the observations from the MSICG concerning the lack of consultation of the indigenous peoples concerned with regard to the Northern Transversal Strip (Franja Transversal del Norte) project, which entails the construction of a 362 km road network which will affect the departments of Izabal, Alta Verapaz, Quiché and Huehuetenango. The Committee requests the Government to send detailed information on this matter.

Articles 2 and 33. Coordinated and systematic action. In its previous comments, the Committee asked the Government to adopt, in cooperation with the peoples concerned, the necessary measures and to establish the mechanisms provided for in Articles 2 and 33 with a view to developing coordinated and systematic action for the implementation of the Convention. The Committee notes the Government’s reference to the National Council for Urban and Rural Development, the National Council for the Peace Agreements, the High-Level Commission for Human Rights and Indigenous Peoples, the Inter-Institutional State Coordinator for Indigenous Affairs and the Guatemalan Indigenous Development Fund. However, the Committee observes that the Government does not provide any information on the operation of these bodies, on how the participation of indigenous peoples in them is ensured or on how coordination occurs between them in order to guarantee the effective protection of the rights of indigenous and tribal peoples. The Committee therefore requests the Government once again to ensure the effective application of Articles 2 and 33 of the Convention by establishing a mechanism, in cooperation with the indigenous and tribal peoples, for developing coordinated and systematic action for the implementation of the Convention.

Article 14. Lands. In its previous comments the Committee asked the Government to provide information on the transitional measures adopted to protect the land rights of indigenous peoples pending further progress on the regularization of land tenure. The Committee also asked the Government to provide information on the situation in various estates, namely Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guatiquim. The Committee notes that the MSICG refers to other similar conflicts at Finca La Perla and Finca San Luís Malacatán.

The Committee notes the Government’s indication that: (1) the Land Information Registry is conducting a survey to identify communal lands and possibly declare them to be irregularly held lands if they are not entered in the Register in the names of the communities concerned; (2) Decree No. 41-2005 defines communal lands and establishes a legal and social process for identifying and declaring them as such and in May 2009 Decision No. 123-2009 was adopted, establishing specific regulations for them; (3) the Secretariat for Agrarian Affairs and other public bodies that deal with land issues have drawn up a draft Act concerning the regularization of land tenure, which is being discussed within the National Dialogue System; (4) a land access system is being promoted by means of credits for purchase and lease; (5) communities which only function as social entities are being encouraged to establish themselves as associations in law in order to qualify for land awards. As regards the situation at Finca Termal Xauch, the Government indicates that the community members reached an agreement with the owner of the estate and in the other two cases the community members expressed their willingness to purchase the lands that they occupy and that FONTIERRA still has to find the owners. The Committee requests the Government to provide information on the application in practice of Decree No. 41-2005 and its regulations of 2009 concerning communal lands. Noting that the Act concerning the regularization of land tenure has still not been adopted, the Committee also requests the Government to adopt transitional measures without delay, pending the adoption of the aforementioned Act, to give adequate protection to the land rights of the indigenous peoples in accordance with Article 14 of the Convention. The Committee requests the Government to send detailed information on any further developments in this respect. The Committee also requests the Government to send information on the situation at Finca La Perla and Finca San Luís Malacatán and send a copy of the National Policy for Comprehensive Rural Development and provide information on its implementation.

Article 24 et seq. Health. The Committee notes the report of the United Nations Committee on the Elimination of Racial Discrimination (CERD), which expressed concern at the fact that “the highest maternal and infant mortality figures are in the departments of Alta Verapaz, Huehuetenango, Sololá and Totonicapán, where the indigenous population accounts for between 76 and 100 per cent of the population.” The CERD also expressed concern about “the lack of adequate and accessible health services for these communities …” (CERD/C/GTM/CO/12-13, 19 May 2010, paragraph 13). While noting the recent extension in coverage provided by the sickness and maternity programmes of the Guatemalan Social Security Institute, the Committee requests the Government to take the necessary measures without delay to ensure that these programmes are effective in reaching the peoples concerned so that in practice they are on an equal footing with the rest of the population regarding access to health care. The Committee requests the Government to send detailed information in this regard.