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Guatemalan Indigenous Organizations File Complaint over Mining Law with Inter-American Commission on Human Rights PDF Print E-mail
Written by Many   
Tuesday, 03 September 2013 14:36

Sources: Western Peoples' Council (CPO) - Network in Solidarity with the People of Guatemala (NISGUA) - MiningWatch Canada – Center for International Environmental Law (CIEL)

Guatemala's Western Peoples' Council of Mayan organizations (CPO) filed a petition with the Inter-American Commission on Human Rights (IACHR) alleging that the country’s mining law was approved without their prior consultation as required under both national and international law. The IACHR is the last resort for the CPO, which has exhausted all domestic recourse to halt violations as a result of current mining legislation.

The CPO first challenged the constitutionality of the 1997 Mining Law in
a July 2012 suit filed with Guatemala’s Constitutional Court. In March 2013, however, the Constitutional Court upheld the mining law, contradicting Guatemala's legal obligations to consult with indigenous peoples before the approval of policies that will significantly impact their territories.

“We believe that Constitutional Court’s decision is illegal and contradictory, given that the same court ruled in 2011 that consultation is a constitutional right of indigenous peoples in Guatemala. Indigenous peoples were not consulted on the Mining Law despite its implications for our way of life and the state’s commitment to respect the collective rights of indigenous people under international legal instruments such as the International Labour Organization’s Convention 169,” said Lucia Xiloj, attorney and member of the CPO legal team.

With over 360 mining licenses issued and more than 600 pending, Guatemala’s mining sector has been in the spotlight for increasing conflict and violence across the country. At the root of these conflicts is the lack of respect for free, prior and informed consent of affected communities at the project and policy level.

Nearly a million people have voted against mining on their territories in 78 community referenda held throughout Guatemala since 2005.
A public opinion survey published in January 2013 further demonstrated that some 66% of Guatemalans are opposed to mining. Nonetheless, neither the government nor the mining companies have respected community decisions; instead repression against those opposed to mining has intensified.

“The conflict, which has at its root the violation of the right to consultation, has resulted in targeted attacks and death, as well as the criminalization and persecution of community leaders,” said Lolita Chavez, member of the CPO and a signatory on the IACHR complaint.

According to the Agreement on Identity and Rights of Indigenous Peoples in Guatemala’s Peace Accords, the American Convention on Human Rights, the International Labour Organization Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples, Guatemala is obliged to respect the right of indigenous peoples to free, prior and informed consent for any project that could adversely impact them, and to consult with them before passing laws or administrative initiatives that would affect their rights.

“A favorable response from the Inter-American Commission on this case is vitally important, given that the current mining law has allowed Canadian and U.S. mining companies in particular to exploit indigenous territories with complete disregard for indigenous peoples' decision-making processes regarding their lands and resources,” said Kris Genovese, Senior Attorney with the
Center for International Environmental Law in Washington D.C.

The Western People’s Council is a coalition of indigenous authorities and institutions from seven departments of Guatemala. The complaint filed in the IACHR has 32 signatories representing 8 indigenous groups that make up the Western Peoples’ Council. Each signatory was elected during community assemblies carried out during the weeks leading up to the filing.

Background

In May, the military was sent into indigenous and non-indigenous communities in the area of Tahoe Resources’ Escobal silver project south of Guatemala City, following increased violence in the region, including a shooting against protesters demonstrating peacefully outside the mine site. The company’s head of security and his advisor are currently awaiting trial for their alleged involvement in ordering and then covering up evidence of the attack.

Tahoe Resources is a spin-off from Goldcorp, which sold the Escobal project to Tahoe in 2010 and which now holds 40% of Tahoe’s shares and multiple positions on its board of directors. Goldcorp’s Marlin mine in the northwestern highlands of Guatemala has been the source of continuing tensions over lack of respect for indigenous rights and land, and impacts on water supplies and public health.

For nearly a year and a half, community members in La Puya, just north of Guatemala City, have been peacefully blocking entry to the Tambor mine project currently in the hands of Kappes Cassidy & Associates, which took over the project from Vancouver-based Radius Gold in August 2012 following the shooting of Yolanda Oquelí. Community members opposing the project have faced repeated threats from company workers during the last ten months, despite entering into a high-level dialogue with the government in June.

In August, Rights Action reported that female plaintiffs are facing intimidation and harassment for having brought three lawsuits against Toronto-based Hudbay Minerals regarding the gang rape of a group of women during a forced eviction in 2007 and shootings in 2009 in the eastern municipality of El Estor. The lawsuits are taking place in an Ontario court and mark the first time that alleged human rights abuses regarding a foreign-owned subsidiary have been admitted against a parent company in Canada.

English Translation of CPO Communiqué:

The Council of Maya and Xinca Peoples Denounces the Guatemala State in the Inter-American Commission on Human Rights

On February 28, 2013, the Guatemalan Constitutional Court dismissed the Council’s challenge of unconstitutionality filed against the mining law on March 12, 2012.  

As a result of leaving the current Mining Law in force, the State of Guatemala violates its responsibilities under international law, under which it is obliged to guarantee the effective exercise of our rights to political participation, consultation and consent regarding such legislation.

The collective and individual human rights that have been violated by the State of Guatemala are:

  1. Political Rights – the rights to participation, consultation and consent as recognized in article 23.1 of the American Convention on Human Rights (the Convention).
  2. Right to equality under the law as recognized in article 24 of the Convention.
  3. Right to legal guarantees and judicial protection – the right to access to justice – as per articles 8.1 and 25.1 in relation to articles 1.1 and 2 of the Convention.

Based on the description of the facts and declaration of the rights that have been violated; we request that the Inter-American Commission on Human Rights:

  1. Proceed with the analysis of our case and request the relevant observations from the state of Guatemala;
  2. Emit the pertinent report regarding admissibility of the case;
  3. Determine the responsibility of the state of Guatemala for violation of articles 23.1.a., 24, 8.1, and 25.1, related to articles 1.1 y 2 of the Convention through the elaboration of an in-depth report.
 

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