Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

The Committee notes the Government’s reports received in December 2011 and September 2012, containing additional information concerning certain of the matters examined in its previous comments. The Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) also provided its observations in August 2012 on the project for the construction of a cement plant in the municipality of San Juan Sacatepéquez (department of Guatemala) and the exploitation of mining resources in the Marlin mine located in San Miguel Ixtahuacán (department of San Marcos). The International Organisation of Employers (IOE) expressed support for the observations made by the CACIF.

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Communication from the Trade Union Confederation of Guatemala (UNSITRAGUA), the General Confederation of Workers of Guatemala (CGTG) and the Trade Unions’ Unity of Guatemala (CUSG). Alternative report prepared by the Council of Mayan Organizations of Guatemala (COMG). In September 2012, the Office forwarded to the Government a communication from the three trade unions containing general observations on the application of the Convention, and particularly the lack of regulation of the right to consultation and the pending legislative amendments on mining and environmental health. In addition, the Office also received, on 4 December 2012, a communication by the Central Confederation of Rural and Urban Workers (CCTCC) submitting an alternative report prepared by the Council of Mayan Organizations of Guatemala (COMG). Among other issues related to the application of the Convention, the alternative report evoked the events that took place on 4 October 2012 in Totonicapan which resulted in the deaths of eight and the injuries of 35 indigenous peoples. The Committee asks the Government to include in its report detailed information on the measures taken to investigate the events that occurred in Totonicapan. Please also include detailed information on the measures taken to ensure observance of the Convention in the situations submitted by the social partners and the indigenous people’s organizations (Parts VII and VIII of the report form).

Appropriate consultation and participation machinery. In the report received in December 2011, with reference to the comments that have been made for many years on the right to consultation, the Government forwarded the decision of the Constitutional Court of 24 November 2011 on Case No. 1072 2011 requesting the President of the Republic to reopen the initiative for the regulation of consultation with indigenous peoples through appropriate means to ensure that consultation is held with the due participation of the indigenous peoples. The Committee notes that the Constitutional Court referred to its ruling of 21 December 2009 on Case No. 3878-2007, in which it placed emphasis on the effective right to consultation established in the Convention and recalled that the System of Development Councils (Decree No. 11-2002, which provisionally regulates consultation) offers a structure which continues to “ensure the presence of community representatives in general and, specifically, of representatives of indigenous peoples from the various regions of the country, both elected according to their own principles, values, usages and customs”. The Committee recalls that the Office is offering technical assistance to all the parties concerned to facilitate the establishment of appropriate consultation and participation machinery, as required by Articles 6, 7 and 15 of the Convention. Under these conditions, the Committee refers to its previous comments and:

• (i) requests the Government to provide information in its next report on the measures adopted to establish appropriate consultation and participation machinery in accordance with the Convention, taking into account its general observation of 2010;
• (ii) reiterates its request to the Government to ensure that indigenous peoples are consulted and can participate in an appropriate manner, through their representative institutions, in the establishment of this machinery 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 above process, with a view to pursuing a constructive dialogue that enables positive results to be achieved;
• (iv) observing that section 26 of the Act respecting urban and rural development councils provides for provisional consultation machinery with indigenous peoples pending settlement of the issue at the national level, invites the Government to provide information on the use of that provisional machinery and on the application in practice of section 26 of the Act; and
• (v) requests the Government to take the necessary measures to bring the existing legislation, including the Mining Act, into conformity with the Convention.

Project for the construction of a cement plant in the municipality of San Juan Sacatepéquez (department of Guatemala). The Committee notes the illustrative documentation provided by the Government and the CACIF on developments in the situation in the municipality of San Juan Sacatepéquez in 2011 and 2012. The municipality is located some 31 kilometres to the north east of the City of Guatemala and is composed of municipal township, 20 small villages and 56 groups of houses. Most of the inhabitants are Maya Kaqchikeles. In a special report by the Human Rights Ombudsman, published in December 2011, the principal problems are outlined which make the situation in San Juan Sacatepéquez “an illustrative case of violence, criminality and violations of human rights”. In his conclusions and recommendation, the Human Rights Ombudsman emphasizes that in San Juan Sacatepéquez the State lost the monopoly of the legitimate use of force and the control of large areas of the municipality, which passed into the hands of clandestine and illegal security groups. The Government therefore indicates in its report that the violence in San Juan Sacatepéquez emerged prior to the plans to locate a cement plant there and is not a consequence of the project, and has its origins in various separate causes which the State has identified and is endeavouring to resolve. In a Government document prepared by the Standing National Dialogue System (SNDP), dated December 2011, reference is also made to the violence in San Juan Sacatepéquez results from the electoral process and from certain external actors. The Committee notes the communication provided by the Government in which the Association of Kaqchikeles Communities of San Juan Qamolo Qi’ sent to the Ambassador of Germany in Guatemala in August 2011 recalling the violence suffered since 2006, including the murder of community leaders and other very serious forms of ill-treatment. Referring to the earlier recommendations of the Committee of Experts, the Association of Kaqchikeles Communities of San Juan requested the Ambassador of Germany to use his good offices to assess once again, with the participation of the Kaqchikeles peoples of San Juan Sacatepéquez, the social, spiritual and cultural impact on the environment that will be caused by the mining activities and the extent to which the interests of the indigenous peoples would be affected, in accordance with Articles 7 and 15 of the Convention. The Committee notes the documentation on the preparation of a system to address disputes through awareness-raising workshops on non-violent communication, which were held in 2011 with the participation of the various parties concerned. The Government also included information from the support programme for the National Peace and Reconciliation Process and the German technical cooperation agency (GTZ) in Guatemala. The CACIF indicates that the dialogue process has succeeded in creating confidence in the context of constructive communication. The Committee notes the replies to the questions raised by community leaders in San Juan by the enterprise Cementos Progreso SA, including various proposals and suggestions for guarantees and verification by national and international authorities. Under these circumstances, the Committee hopes that all the parties involved will continue their efforts to engage in constructive dialogue through machinery in which they have confidence. The Committee invites the Government to provide updated information in its next report on the progress made in good faith negotiations, in accordance with Articles 6, 7 and 15 of the Convention. The Committee requests the Government:

• (i) to indicate in its next report how the solutions found for the establishment of the cement factory in San Juan Sacatepéquez have taken into account the interests and priorities of the Maya Kaqchikeles Communities residing in the area;
• (ii) to ensure that the project for the establishment of the cement factory in San Juan Sacatepéquez does not have harmful effects on the health, culture and property of the Maya Kaqchikeles Communities residing in the area and draws the Government’s attention to paragraphs 3 and 4 of Article 7 of the Convention; and
• (iii) to take the necessary measures to guarantee the integrity of the persons and property affected by the cement factory project and to ensure that all the parties concerned refrain from any acts of intimidation or violence against persons who do not share their views on the project.

Exploitation of the Marlin mine in San Miguel Ixtahuacán (department of San Marcos). The Committee notes the updated information provided by the Government and the CACIF on the exploitation of resources through mining by the company Montana Exploradora de Guatemala SA in a mine located in the vicinity of San Miguel Ixtahuacán. The Committee also recalls that the Inter-American Commission on Human Rights (IACHR), in Decision No. MC 260/07 of 20 May 2010, imposed protective measures and requested the State of Guatemala to suspend mining operations in the Marlin I project and other activities connected with the licence awarded to Goldcorp/Montana Exploradora de Guatemala SA. The IACHR also requested the State to take effective measures to prevent environmental pollution pending the adoption of a decision on the substance of the petition related to the application for protective measures. The Committee observes that according to the information provided by the Government in its report and CACIF, mining exploitation activities have continued. The Ministry of the Environment and Natural Resources indicates that water monitoring is adequate and national and international standards are taken into consideration. Approximately 99 per cent of the water is recycled by means of a closed circuit as part of a responsible mining process. According to the information received, in June 2011, a permanent care centre was inaugurated and days were organized for vaccination and the training of midwives for the benefit of the local population. The company also offered training and educational and sporting infrastructure. The company maintains a road network of 108 kilometres which benefits the whole of the department. The company has become one of the principal contributors to the national economy, as royalties have been paid to the central Government and to the municipalities of San Miguel and Sipacapa. Moreover, the company is reported to have made an additional contribution of voluntary royalties of 4 per cent in accordance with the framework agreement for the provision of voluntary royalties concluded by the Association of Mining Industries in January 2012. The Committee refers to its previous comments and requests the Government to provide updated information in its next report on the consultations and participation required by Article 15 of the Convention in relation to the authorization of the exploitation programmes of the company Montana Exploradora de Guatemala SA for existing mining resources.

Northern Transversal Strip project. Other territorial development projects. In its observation in 2011, the Committee noted the comments made by the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) concerning the lack of consultation of the indigenous peoples concerned in relation to the project for the construction of the Northern Transversal Strip, which involves the construction of a road network of 362 kilometres in the departments of Izabal, Alta Verapaz, Quiché and Huehuetenango. The information provided by the Government in August 2012 included documentation from the Subsecretariat of Territorial Planning and Development concerning a master plan for the central subregion. A document of the Ministry of Communications, Infrastructure and Housing on the development of a strategy to create a “micro-region” was also provided. With regard to infrastructure projects, the Committee requests the Government, in the report due in 2013, to include information enabling it to examine in detail the manner in which it has been ensured that indigenous peoples are consulted on each occasion that legislative or administrative measures which may affect them directly are under consideration (Article 6 of the Convention).

The Committee invites the Government, when preparing the report due in 2013, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. The Committee hopes that the Government will provide a report in 2013 containing specific information on the other matters raised in the observation and direct request made in 2011 and on the results achieved by the measures adopted to give effect to each of the provisions of the Convention.