Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Guatemala (Ratification: 1996)

The Committee notes the joint observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the International Organisation of Employers (IOE), received in 2017 and on 1 September 2018. The Committee also notes the observations of the Guatemalan Union, Indigenous and Peasant Movement (MSICG), received in 2016 and on 13 February 2018, and the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 1 September 2018. The Committee notes that the Government’s report contains detailed information, and welcomes its efforts in this regard.

Articles 2 and 33 of the Convention. Coordinated and systematic action. In its previous comments, the Committee encouraged the Government to pursue its efforts, in cooperation with indigenous peoples, to establish a mechanism for coordinated and systematic action on policies and programmes, as required by the Convention. The Government refers in its report to the creation of the Office for Indigenous Peoples and Interculturality in 2016, as an advisory and deliberative body subordinate to the Office of the President of the Republic, the functions of which include: ensuring that each Ministry has an advisory body for indigenous peoples; evaluating the action taken by the State with regard to indigenous peoples and interculturality; and managing and promoting studies and research on the impact of the policies. The Office for Indigenous Peoples and Interculturality is composed of nine ministries, five secretariats, government institutions responsible for indigenous affairs, and national representatives of indigenous peoples in the System of Development Councils. The Government emphasizes that one of the Office’s priorities is to develop the Indigenous Peoples and Interculturality Policy (PPII) 2018–30, thus following up on a process initiated in 2013. In this regard, an Interinstitutional Technical Commission was established and an operative road map was adopted.

The Government also refers to the National Development Plan: “K’atun Our Guatemala 2032”, emphasizing that the Plan includes an equality perspective to improve the quality of life of the whole population, including indigenous men and women. The Government indicates that, out of a total of 62 public policies, 34 address the rights of the Maya, Xinka and Garifuna peoples. Furthermore, the General Policy Guidelines 2019–23 focus specifically on indigenous peoples with regard to malnutrition, health, water and natural resources. The following departments with a high percentage of indigenous peoples benefited from public investment: Totonicapán, Sololá, Alta Verapaz, Quiché, Chimaltenango, Huehuetenango, Baja Verapaz, Quetzaltenango, Suchitepéquez and Sacatepéquez. The Government provides information on the activities carried out by various institutions that directly or indirectly address issues related to indigenous peoples, in particular the Guatemalan Indigenous Development Fund.

The Committee notes that, in their joint observations, the Guatemalan Autonomous Popular Trade Union Movement and the Global Unions of Guatemala regret that there is no institution responsible for public policies on indigenous peoples. The Committee observes that, in its annual report for 2017, the Office of the Human Rights Advocate of Guatemala indicates that the 32 bodies created specifically to address the needs of indigenous peoples are facing significant challenges, including the lack of a strong legal framework, and insufficient funds and staff, which prevent them from extending the coverage of the services that they provide.

The Committee expresses the hope that the Government will take the necessary measures to adopt rapidly the Indigenous Peoples and Interculturality Policy (PPII), and requests it to indicate which indigenous populations have been consulted and have participated in the development of this Policy. The Committee also requests the Government to indicate the measures taken to ensure that the Office for Indigenous Peoples and Interculturality has sufficient staff and material resources to evaluate the action taken by the State with regard to indigenous peoples and interculturality. It also requests the Government to provide information on the results of the evaluations carried out by this body. Lastly, noting the existence of several institutions for the protection of the rights of indigenous peoples provided for in the Convention, the Committee requests the Government to ensure the effective coordination and harmonization of the activities carried out by these institutions, defining their legal framework appropriately. The Committee requests the Government to provide information in this regard.

Article 3. 1. Human rights. The Committee previously requested the Government to indicate the measures adopted to avoid force and coercion being used in violation of the human rights and fundamental freedoms of indigenous peoples. The Committee also requested updated information on the status of the judicial proceedings initiated with regard to the events in Totonicapán in 2012 and the rulings handed down in relation to the persons prosecuted in this case. The Committee notes that the Government transmits information from the Office of the Public Prosecutor, which describes the different stages of the judicial proceedings initiated against a colonel in the infantry and eight members of the public safety branch of the Guatemalan Army, who were accused of several offences, including murder, committed during the events in Totonicapán. The Government also provides information on the measures taken to facilitate access to justice for indigenous peoples, indicating in particular that, in 2017, a Secretariat for Indigenous Peoples was established in the Office of the Public Prosecutor and the judicial authorities, and that the Policy on the Access of Indigenous Peoples to the Office of the Public Prosecutor 2017–25 was adopted.

The Committee observes that the Guatemalan Autonomous Popular Trade Union Movement and the Global Unions of Guatemala express concern regarding the considerable increase in the repression of social, community and indigenous organizations calling for respect for their rights. The trade union organizations also allege that the Office of the Public Prosecutor has played a key role in the criminalization of indigenous peoples, particularly leaders who oppose infrastructure projects carried out in their territories. By way of illustration, the trade union organizations refer to specific cases of leaders of indigenous peoples being murdered, detained or subject to acts of violence, which demonstrates the repression and criminalization of their protests.

The Committee also notes the Report of the United Nations Special Rapporteur on the rights of indigenous peoples concerning her visit to Guatemala, dated 10 August 2018. The Committee observes that the Special Rapporteur expresses her deep concern regarding the “increasing frequency of criminal proceedings against indigenous persons who are defending their lands and resources”. The Report also indicates that “Guatemala is faced with an alarming intensification of violence, which is shown in the increase in the number of murders of indigenous defenders who attempt to defend their rights over their traditional lands” (A/HRC/39/17/Add.3).

The Committee expresses its deep concern regarding the murders, acts of violence and repression of social protests by indigenous peoples. It urges the Government to take the necessary measures to investigate the murders and all the acts of violence reported, and to initiate the relevant judicial proceedings to identify, determine the responsibilities of and penalize the perpetrators. In this regard, the Committee requests the Government to provide copies of all the judicial decisions handed down. The Committee also urges the Government to take the necessary measures to promote a climate free of violence which guarantees the safety of the members, institutions, property, work, cultures and environment of indigenous peoples, and respect for their human rights and all the rights enshrined in the Convention. The Committee also requests the Government to provide information on the outcome of the proceedings relating to the events in Totonicapán.

2. Action to combat discrimination. The Committee notes the detailed information provided by the Government on the activities carried out to combat discrimination and for the promotion, development, revival and practice of the cultures of the indigenous populations in the country (Maya, Garifuna, Xinka and Mestizo). The Committee notes in particular the programmes implemented by the General Directorate of Cultural Development and the Strengthening of Cultures; the training activities on the prevention of legal, economic and institutional discrimination and racism, carried out by the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA) and targeting public officials, judicial officials, and trainers in public institutions (diplomas, post-graduate programme, training course for trainers and training workshops); and the Institutional Gender Equality Policy, which aims to increase the active participation of Maya, Garifuna, Xinka and Mestizo women in election processes. The Government also provides information on the complaints lodged with the Office of the Public Prosecutor on crimes of discrimination, the cases brought before first level criminal courts, and the persons sentenced for this crime between 2015 and February 2018. The Committee observes that an average of 350 complaints have been lodged per year and that eight rulings have been handed down under section 202 of the Criminal Code, which prohibits discrimination.

The Committee observes that, in its 2017 report, the Office of the Human Rights Advocate of Guatemala indicates that the indigenous agenda pending in Congress has been unsuccessful, as “in Guatemala, there has been no change of paradigm regarding cultural diversity, no commitment to combating ‘discrimination’ and no willingness to consult indigenous populations”. The Office of the Human Rights Advocate considers that the cultural relevance of public policies requires a second approach with “inclusive structures in all public institutions, specific policies with budgetary allocations and transparency and participation criteria, as well as affirmative measures and measures to combat racism and discrimination in public and at the institutional level”. The Committee requests the Government to intensify its efforts to prevent and combat discrimination against members of indigenous communities, with particular emphasis on indigenous women, and to provide information on the activities carried out by CODISRA in this regard, and by other competent public bodies.

Articles 6 and 7. Appropriate consultation and participation procedures. In its previous comments, the Committee noted that the provisions establishing consultation procedures contained in the Municipal Code and the Act on Urban and Rural Development Councils did not give full effect to the Convention. The Committee hoped that constructive dialogue would continue in the country on the establishment of appropriate consultation and participation procedures, and requested the Government to provide information on the results achieved. The Government indicates that, in October 2016, a national dialogue for the establishment of basic standards for consultations with indigenous peoples was launched with the aim of: holding participatory meetings and workshops with ancestral authorities, leaders and representatives of organizations of indigenous peoples; defining a guiding tool to give effect to the Convention; and obtaining information for the development of the Operational Guide for Consultations with Indigenous Peoples. The Government indicates that the methodology used during the consultation process as part of the national dialogue included five stages: (i) a territorial approach involving the identification of indigenous leaders, authorities and organizations in the same linguistic region; (ii) the organization of bilateral workshops, dialogues and meetings with the aim of gathering inputs; (iii) the compilation of inputs and their incorporation into the Guide; (iv) the organization of three regional feedback workshops for the development of the Guide; and (v) the process to “socialization” and dissemination of the Guide at the national level. The Government indicates that the Guide is a guidance document for public institutions on how to conduct prior consultations with indigenous peoples. In this regard, the Government indicates that the Guide is in accordance with the ruling of the Constitutional Court of 26 May 2017 concerning the Oxec and Oxec II hydroelectric projects (joint rulings Nos 90-2017, 91-2017 and 92-2017), which establish, inter alia, the mandatory procedures and guidelines to be followed by state bodies for all consultations with indigenous peoples, and require the Congress of the Republic to complete, within a year, the legislative process for the adoption of legislation on the right to consultation. In this regard, the Government indicates that Congress is examining two legislative initiatives on the right to consultation of indigenous peoples, and that one of the initiatives has been transmitted to the ILO by the Ministry of Labour. Furthermore, with a view to explaining the implementation of the methodology set out in the Guide, the Government describes the different stages of the consultation process carried out by the Ministry of Energy and Mining with the Maya Q’eqchi community with regard to the Oxec and Oxec II hydroelectric power stations. The Government highlights the presence of the Office of the Human Rights Advocate as an observer and guarantor of the consultation process, and of the Guatemalan Academy of Maya Languages to ensure the translation into Q’eqchi. The consultation process ended with proposals for the establishment of an agreement on peace-building, environmental issues and sustainable development.

The Committee notes that the CACIF recognizes the Government’s efforts regarding the elaboration of the Operational Guide for Consultations with Indigenous Peoples, the content of which was the subject of consultations with employers and representatives of indigenous peoples. The CACIF indicates that, while the Guide is not a legal instrument, its application by the authorities should help to ensure future consultation processes. However, the CACIF expresses concern regarding the lack of adequate regulations to properly guarantee the right to consultation enshrined in the Convention, and the uncertainty arising out of the rulings issued by national courts of justice which have created contradictory case law on the scope and form to be taken by consultations with indigenous peoples. Referring to the ruling of the Constitutional Court on the Oxec case, the CACIF welcomes the fact that the Court attempted to apply a unifying criterion to determine the procedures to be followed by courts and other state bodies when holding consultations with indigenous peoples in Guatemala. The CACIF also indicates that, in this ruling, the Court determined that consultations were to be held with indigenous peoples affected by the Oxec projects within a period of 12 months, and that while the consultations were being held, the enterprise responsible for the project could continue to operate. The CACIF regrets that later rulings ordered the cancellation of licences and the suspension of operations by enterprises, thus directly affecting employers, and also workers in terms of the jobs lost.

The Committee notes the indications of the Guatemalan Autonomous Popular Trade Union Movement and the Global Unions of Guatemala that the legal initiatives to regulate the right to consultation have not been the subject of consultation with indigenous peoples, and that many of the traditional authorities rejected the Operational Guide for Consultations with Indigenous Peoples adopted in 2017. The trade union organizations consider that the limited recognition in practice of the right to consultation has only been achieved through the successive claims filed by indigenous peoples with the courts.

The Committee takes due note of the efforts made by the Government with regard to the consultation process for the adoption of the Operational Guide for Consultations with Indigenous Peoples. While noting the ruling of the Constitutional Court regarding the Oxec projects and the submission to Congress of two bills on consultations with indigenous peoples, the Committee observes that the Government does not indicate whether or the manner in which indigenous peoples have been consulted on the two bills. The Committee recalls that, in accordance with Article 6 of the Convention, the Government is required to consult the peoples concerned through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly. The consultations must be undertaken in good faith, through genuine dialogue, and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. Furthermore, indigenous peoples must be given sufficient time to organize their own internal decision-making processes and to participate effectively in the decisions adopted.

The Committee therefore expresses the firm hope that the necessary measures will be adopted to ensure that indigenous peoples are consulted, in accordance with the terms of Article 6, and are able to participate in an appropriate manner through their representative bodies in the formulation of the bill on consultation procedures with indigenous peoples, to enable them to express their opinions and have an influence on the end result of the process. The Committee requests the Government to take the necessary measures to ensure that all the legislation to be adopted for the implementation of prior consultation with indigenous peoples gives full effect to the Articles of the Convention on consultation (Articles 6, 15(2), 16, 17, 22, 27 and 28). Until the legislation is adopted, the Committee requests the Government to provide information on the consultation processes carried out with regard to the administrative and legislative measures which may affect indigenous peoples, and on any complaints lodged in this regard. The Committee reminds the Government that, if it considers it appropriate, it may avail itself of ILO technical assistance in this regard.

Article 14. Lands. In the comments that it has been making for several years, the Committee has requested the Government to take the necessary transitional measures to protect the rights of ownership and possession of indigenous peoples over the lands that they traditionally occupy, in accordance with Article 14 of the Convention, pending further progress on the regularization of land tenure. In this regard, the Committee noted the Act on land registry information (Decree No. 41-2005) and observed that that Title VII “Regularization under the land registration process” will apply until the entry into force of the “Land Tenure Act”, and that section 65, included in this provisional Title, provides for machinery for determining and registering communal lands. In its previous comment, the Committee requested the Government to provide information on the application in practice of the Act on land registry information and its Regulations of 2009. It also requested information on the impact of the measures adopted on rural development and agricultural policy on the effective recognition of the land rights of indigenous peoples.

The Government indicates that, during the period 2015–17, a total of 6,728 families benefited from court rulings on the allocation and regularization of state land in the framework of the Programme for the regularization and allocation of state land. The Government considers that this Programme is in accordance with the Agreement on socio-economic aspects and the agrarian situation of 1996, with regard to the regularization of title to the lands of rural and indigenous communities. In this regard, the Land Fund examines cases concerning the allocation and tenure of the lands delivered or in the process of being delivered by the State. The Committee observes that, according to this information, half of the rulings benefited Maya families, and that Xinka and Garifuna families did not benefit from the rulings. The Government also provides information on the programmes implemented by the Land Fund, including the Programme on access to land through subsidized loans and the Special Programme on land leases, intended for rural and indigenous families who are landless or have insufficient land and are living in a situation of poverty.

The Government also indicates that: (i) the Secretariat for Agrarian Affairs (SAA) of the Office of the President has undertaken strategic efforts, through different mechanisms, to facilitate the negotiated and consensual settlement of agrarian disputes between stakeholders; (ii) the SAA does not have the authority to determine who is the right holder, but makes use of historical land registration studies; (iii) the recognition of land rights is the responsibility of the General Property Registry through the certificates that it issues for registered farms; it also recognizes the possession of land, in a peaceful manner and in good faith, as well as customary tenure by indigenous peoples; (iv) the SAA gives preference to the use of customary law to settle land disputes involving members of the same community or between communities; (v) with regard to high-impact cases, 35 disputes were identified, in which permanent dialogue forums were established; (vi) according to the information provided, in 2017, the local offices of the SAA dealt with a total of 1,425 cases and 485 disputes were settled; (vii) the departments with the highest number of disputes were: Huehuetenango, Petén, Alta Verapaz, Quiché and Izabal; and (viii) among the difficulties identified by the SAA, the Government refers to the difficulty of reaching agreement in a shorter period of time, finding more appropriate ways of addressing problems using alternative methods, and establishing direct communication with persons and groups.

The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala allege the existence of a trend of evictions by court order in violation of the individual and collective human rights of indigenous communities. In their view, the evictions have had a serious impact on the communities, which suffer a total lack of protection and have no access to basic services, and whose ancestral practices and other collective activities are at risk of disappearing.

The Committee notes that, in the report on her visit to Guatemala in August 2018, the United Nations Special Rapporteur on the rights of indigenous peoples indicates that the “disturbing failure to protect these rights arises out of a context of extreme inequality in the distribution of land and the insecurity of tenure, together with an inadequate registration system that enables third parties to be given title to indigenous ancestral lands. Moreover, there are no appropriate mechanisms to settle conflicts of ownership, which means that disputes tend to come before the courts” (A/HRC/39/17/Add.3). In his 2017 report, the United Nations High Commissioner for Human Rights on the activities of his office in Guatemala indicates that “there continued to be a lack of protection for the collective property of indigenous peoples, particularly affecting women in the case of land titling and access to credits” (A/HRC/37/3/Add.1).

Noting the Programme for the regularization and allocation of state land, the Committee observes that it is unclear from the information provided by the Government whether progress has been made in the process of regularizing the lands traditionally occupied by indigenous peoples in terms of identifying and registering communal lands. The Committee requests the Government to adopt, without delay, the necessary measures to give appropriate protection to the land rights of indigenous peoples in accordance with Article 14 of the Convention, and to provide information on the areas of lands titled, the number of persons concerned and the relevant geographical areas. The Committee reiterates its request for concrete information on the application in practice of Decree No. 41 2005 and its Regulations of 2009 on communal lands. The Committee also requests the Government to provide information on the status of the land registration procedure. Please continue to provide information on conflict resolution mechanisms, indicating the conflicts that have been resolved and the conflicts that are pending.

The Committee is raising other matters in a request addressed directly to the Government.