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

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

Article 1 of the Convention. Identification of, and socioeconomic indicators for, the peoples covered by the Convention. In its previous comments, the Committee noted the holding of the Twelfth Population Census in 2018, which included questions related to ethnic self-identification and for which the Government carried out an awareness-raising campaign. The Committee notes that according to the results of the population census, out of a population of 14,902,286 inhabitants, 6,202,503 persons belong to the Maya people; 19,529 to the Garífuna people; 264,167 to the Xinca people, and 27,647 considered themselves creole or of mixed African descent. However, the census does not provide statistical information on the socio-economic situation of the various peoples covered by the Convention. The Committee notes that in its supplementary information the Government refers to various initiatives to improve the information and the compilation of statistical data identifying the indigenous population. Among these initiatives, the Committee notes the preparation of the manual on the inclusion of the right to self-identification in official statistics aimed at contributing to the production of official statistics that make indigenous peoples visible through the application of the right to self-identification in data compilation tools (census, household surveys and administrative records). The Government indicates in this respect that it is necessary to disseminate and implement the manual.

The Committee notes the data from the 2018 population census on the peoples covered by the Convention and welcomes the measures taken by the Government for the compilation of up-to-date socio-economic statistics on the indigenous population. In this connection, and recalling its general observation of 2018, the Committee encourages the Government to continue its efforts for the collection of data on the socio-economic conditions of the peoples covered by the Convention, including their access to the internet, with a view to the design of effective public policies and the monitoring of their implementation. The Committee requests the Government to provide information on the progress achieved in this respect and to provide the statistics compiled.

Population of African descent. The Committee notes the concerns expressed in the 2019 concluding observations of the United Nations Committee on the Elimination of Racial Discrimination (CERD) at the lack of sufficient information about how the categories used in the census should be applied, which could hamper the self-identification of persons of African descent and other ethnic groups (CERD/C/GTM/CO/16-17). The Committee requests the Government to provide specific information on the location of peoples of African descent covered by the Convention, including examples of public policies specifically directed at that group.

Article 3. Prevention measures and awareness-raising to combat discrimination. With reference to its previous comments on the action to intensify prevention and combat discrimination against indigenous peoples, the Committee notes the detailed information provided by the Government on the action taken by the Presidential Commission against Discrimination and Racism (CODISRA) between 2018 and 2020. This action includes training and systematic capacity building for public employees dealing with indigenous peoples’ rights; activities to promote the rights of indigenous women with the participation of the gender units of the executive authorities and organizations of indigenous women; the campaign to promote a culture of denouncing the crime of discrimination, including the production of materials in 25 indigenous languages; and support and advice on an individual and collective basis in cases of discrimination and racism against indigenous peoples. In addition, the Committee notes that CODISRA formulated recommendations for the inclusion of relevant cultural factors in the COVID-19 Emergency Plan.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate in their observations that indigenous candidates for political posts have been victims of discrimination on social media. The Committee also observes that CERD, in its 2019 concluding observations, expressed concern that the CODISRA and the Office of the Defender of Indigenous Women’s Rights are unable to discharge their mandates effectively owing to a lack of resources and capacity, and also because of the inadequate participation of indigenous peoples and persons of African descent in these institutions (CERD/C/GTM/CO/16-17). While taking due note of the efforts made by the Government to carry out campaigns and activities for the prevention of acts of discrimination against indigenous peoples, the Committee requests the Government to continue providing information on the measures adopted to promote respect for the culture of indigenous at the political, social and economic levels in the country, indicating how indigenous women and men participate in the design, implementation and subsequent evaluation of those measures. The Committee also requests the Government to provide information on measures adopted to ensure sufficient resources for and to strengthen the capacities of the CODISRA and the Office of the Defender of Indigenous Women’s Rights.

Articles 3 and 30. Human rights and means of communication. In its previous comments, the Committee noted from the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala the references to acts of repression against indigenous peoples’ means of communication, in particular community radio broadcasting, and requested the Government to provide information in that connection. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, in their 2019 observations, indicate that no progress has been made in the legal recognition of community broadcasting and permits for the use of frequencies, and that communicators and community broadcasters continue to be prosecuted. In reply to these observations, the Government indicates that the draft Community Communication Media Act is awaiting its third reading in Congress. The Committee requests the Government to provide information on the measures taken to investigate the acts of persecution against indigenous communicators and their results. It also requests it to provide information on the adoption process of the Community Communication Media Act, with an indication of how the indigenous peoples have been consulted in this regard.

The Committee notes that since 2017 the Presidential Secretariat for Social Communication has helped to disseminate all material related to the strengthening, knowledge, respect and recognition of indigenous peoples, in Maya languages and in Spanish. It also notes that the Guatemalan Academy of Maya Languages disseminates and promotes traditional culture and languages through such media as radio and television advertising, social networks and video tutorials. The Committee requests the Government to provide more detailed information on the measures adopted to promote the existence of communication media that are in harmony with the culture and traditions of indigenous peoples and promote respect for their human rights, ensuring an appropriate environment for the functioning of such media.

Article 6. Political participation. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala refer to the low level of political participation by indigenous peoples, specifying that for the period from 2016 to 2020 indigenous peoples’ representation in Congress stood at 11.39 per cent. In that regard, the Government indicates that, while training materials provided to voting officers are not translated into indigenous languages, it urges the departmental electoral boards to employ temporary trainers who speak the languages of their departments. It adds that although indigenous representation is still too low, there has been a significant increase in indigenous representation in Congress. The Committee requests the Government to continue providing information on increasing and strengthening indigenous peoples’ political participation, at least to the same extent as other sectors of the population, and at all levels, in decision-making in elected institutions and administrative and other entities responsible for policies and programmes that concern them. The Committee also requests the Government to indicate the measures adopted to ensure the cultural and linguistic relevance of the activities undertaken to communicate information on electoral processes and to promote political participation.

Articles 7 and 15. Cooperation in assessing environmental impact. Natural resources. The Committee notes, from the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala, their concerns at the excessive logging and the disappearance of the San Simón river, the Sepalau lagoons, the Aplanada Coratzul and the Limón river, which supply various indigenous communities, due to the monoculture of the African palm. The Government indicates that the Ministry of the Environment and Natural Resources has begun investigations and carried out inspections, which have in some cases found that the droughts are due to natural causes. The Government provides information on some of the action taken by the Ministry of the Environment and Natural Resources in compliance with the Constitutional Court ruling on the Escobal mining project (San Rafael mine) (case No. 4785-2017). The Court ordered the review of the area affected by the project, which had been approved in December 2018, having elicited no reaction from any of the parties notified; it also ordered periodic monitoring of the project’s installations to avoid contaminating waterways during the project’s operation. The Committee requests the Government to indicate how cooperation is in practice ensured with the peoples concerned to assess the social, spiritual, cultural and environmental impact of planned development activities in lands occupied or otherwise used by indigenous peoples, including information on the measures adopted to guarantee the rights of these peoples to the natural resources pertaining to their lands.

Articles 8 and 12 Customary law and access to justice. In its previous comments, the Committee noted the Public Prosecutor’s Strategic Plan 2015–2019, which aimed to coordinate cases brought before the indigenous and the formal justice system. It requested the Government to continue taking measures to promote coordination and communication mechanisms between justice institutions and indigenous authorities so that they take account of the customary law of the indigenous peoples. With regard to access to justice, the Committee noted the measures adopted by the Government to provide culturally and linguistically relevant assistance during legal proceedings involving indigenous peoples. It noted the establishment of the offices for the defence of indigenous rights and encouraged the Government to continue adopting measures to overcome the ongoing difficulties in access to justice for indigenous peoples.

The Committee notes the Policy on Indigenous Peoples’ Access to Justice (PAIOJ) which the Government indicates is intended to give effect to the national and international agreements on human rights and the rights of indigenous peoples, and to the commitments made under the Peace Agreements. The PAIOJ promotes forum and the establishment of jurisdictional bodies to deal with indigenous matters, thereby protecting the autonomy of indigenous peoples and recognizing their authorities, facilitating policies that coordinate the judicial system with the indigenous customary system, and protecting the inherent right of participation by indigenous peoples in policies on judicial matters. The Government provides information on meetings between the indigenous authorities and actors in the justice system with a view to increasing coordination between ordinary justice and indigenous justice. It also includes a copy of the Supreme Court ruling (Criminal cassation decision No. 01004-2012-01848) in which the Court invokes Article 9 of the Convention in affirming that the State justice system must ensure that indigenous people are prosecuted in accordance with their own culture.

The Government indicates that the Office of the Public Prosecutor is administering the Policy on Indigenous Peoples’ Access 2017-2025, which seeks to adopt a comprehensive approach to transforming the services provided to indigenous peoples, including to indigenous women. The policy covers geographical access to the services of the Office of the Public Prosecutor, that are culturally and linguistically appropriate for indigenous peoples, and seeks to encourage persons belonging to indigenous peoples to enter the professional career system of that institution. The Government reports that in 2018 the Criminal Public Defence Institute appointed 263 indigenous women trade unionists as public defenders. The Committee notes the concern expressed by CERD in its 2019 concluding observations on Guatemala that, despite the Government’s efforts to ensure indigenous peoples’ access to justice, discrimination still persists, and the lack of cultural and linguistic relevance in the justice system continue to prevent effective access to justice for indigenous peoples, especially women (CERD/C/GTM/CO/16-17). In the written information submitted in 2019 to the Committee on the Application of Standards of the International Labour Conference, the Government indicated that coordination agreements had been signed by the Office of the Defender of Indigenous Women, the CODISRA and the Tz’ununija Indigenous Women’s Movement in order to strengthen coordination between those institutions.

The Committee requests the Government to continue taking measures to ensure the recognition of customary indigenous law and its application, in coordination with the national justice system, in cases that concern indigenous peoples, and to provide information in this regard. The Committee requests the Government to provide information on the implementation of the policy on indigenous people’s access to the office of the Public Prosecutor, as well as on measures adopted to eliminate cultural and linguistic barriers and the discrimination that indigenous peoples, especially women, continue to face in accessing justice.

Parts III and IV. Conditions of work and employment. Vocational training. In its previous comments, the Committee requested the Government to report on the measures adopted to strengthen the labour inspectorate in the agricultural sector, in particular in the areas in which indigenous people are occupied, taking account of the information provided by the Autonomous Popular Trade Union Movement and Global Unions of Guatemala concerning the high level of violations of labour rights in those rural areas. The Committee notes that, in their 2019 observations, the trade unions again report that indigenous persons receive significantly lower wages than non-indigenous persons. It also notes the concerns expressed by CERD in its 2019 concluding observations at information revealing the precarious working conditions faced by indigenous peoples in the agriculture sector and that they are the victims of labour exploitation or forced labour (CERD/C/GTM/CO/16-17).

The Government reports the publication of the single protocol on procedures for the labour inspection system, which incorporates the Convention within its legal framework, as well as the publication of the procedure for the inspection and monitoring of the rights of agricultural workers. Moreover, the Government indicates that in 2018 the Technical Institute for training and productivity provided employment training for a total of 27,594 indigenous persons (14,415 men and 13,179 women) from the Maya, Xinca and Garífuna peoples. It adds that, between 2013 and 2018 a total of 50,051 indigenous persons nationwide in search of work registered with the Electronic Labour Exchange, and that a total of 3,708 persons have been placed in jobs. According to the supplementary information provided by the Government in 2020, action has been taken, within the framework of the national policy on decent work, to implement a programme of technical skills training in rural areas through the provision of grants to vulnerable people. Of the 2,744 participants in technical courses, 1,147 were from the Maya, 15 from the Xinca and five from the Garífuna peoples

In the light of the information on violations of the labour rights of indigenous workers in the agricultural sector, the Committee recalls the fundamental role of the labour inspectorate in preventing violations of workers’ rights. The Committee therefore once again requests the Government to provide information on the measures taken to ensure that inspections are undertaken in the agricultural areas with the highest concentration of indigenous workers, indicating the number of inspectors assigned, the geographical zones covered, infringements detected and the steps taken to restore the rights of the indigenous workers victims of the violations. The Committee also requests the Government to adopt measures aimed at ensuring that indigenous rural workers are better informed of their labour rights, and to provide information in that connection. The Committee also requests the Government to provide more specific information on the vocational training programmes provided for indigenous persons, and their results in terms of access to skilled jobs, also indicating how the indigenous peoples participate in the organization and operation of the programmes and how their economic, social and cultural context is taken into account.

Articles 24 and 25. Health and social security. In earlier comments, the Committee noted the National Policy on Midwives from the Four Peoples of Guatemala (2015-2025) as well as the national strategy to prevent chronic malnutrition. It encouraged the Government to continue to take the necessary measures to make appropriate health services available to indigenous peoples. The Government indicates that, under the National Policy on Midwives, workshops have been held on guidelines on issuing documents to midwives. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that the Supreme Court has granted amparo for midwives who have been victims of physical or psychological violence. In this regard, the Government indicates that the Ministry of Public Health and Social Assistance has been instructed to prepare a provisional budget for the acquisition of supplies for midwives, and to take the corrective measures required. The Committee notes that in its 2019 concluding observations regarding Guatemala, CERD expressed concern at the lack of cultural and linguistic relevance in the sexual and reproductive health services (document CERD/C/GTM/CO/16-17). The Committee requests the Government to take the necessary measures to investigate cases of violence against indigenous midwives, and against indigenous women receiving gynaecological care, and to provide information on that subject. The Committee also requests the Government to report on progress in implementing the national policy on midwives, indicating what mechanisms have been put in place to ensure coordination between the public health system and the work of indigenous midwives, and the measures adopted to ensure the cultural and linguistic relevance of reproductive health services to indigenous women and men. The Committee requests the Government to continue providing information on the results of the measures adopted to combat chronic malnutrition in indigenous populations and on the number of indigenous persons who are covered by social security schemes.

Article 27. Education. In its previous comments, the Committee encouraged the Government to continue making efforts to implement the bilingual education policy and requested it to continue to provide statistical information in that regard. The Committee notes the statistical information provided by the Government on the number of pupils registered in pre-primary, primary and secondary education by department, and on indigenous students attending the various universities in the country. Between 2010 and 2017, there were 149,900 Maya students, 1,104 Xinca students and 981 Garífuna students registered in San Carlos University of Guatemala. The Committee requests the Government to provide specific information on the measures adopted to guarantee access to bilingual and intercultural education for indigenous children and young persons in cooperation with indigenous peoples, and on their results (enrolment, attendance and school dropout rates), including information on measures to promote access to and use of the internet in schools located in areas inhabited by indigenous peoples.

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) received on 30 August 2019 and the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the Convention. Likewise, it notes the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 30 September 2019, which were formulated together with the Maya Waquib’ kej National Coordination and Convergence, the Association of Lawyers and Notaries of Guatemala (NIM AJPU), the Cultural Survival (Sobrevivencia Cultural) Association, the Committee of United Agricultural Workers (CUC), the Political Alliance for the Women’s Sector (APSM), the Madre Selva Ecologist Collective and the Maya, Garifuna and Xinca Ancestral Authorities. The Committee notes the Government’s replies to the observations from the IOE and the CACIF, as well as to the observations from the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 October 2019.

The Committee also notes the supplementary observations received from the CACIF and the IOE on 1 October 2020. Lastly, the Committee notes the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 16 October 2020. The Committee requests the Government to provide its comments in this respect.

The Committee notes that some of the information provided by the Government refers to measures taken within the framework of the health and economic crisis caused by the COVID-19 pandemic to provide advice to workers belonging to indigenous peoples on their labour rights and provide them with economic support. The Government indicates that, as one of the vulnerable groups affected by the situation, indigenous peoples have benefited from urgent action to address their financial needs.

The Committee notes that, in their supplementary observations, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala allege that certain of the measures adopted by the authorities in the context of the pandemic, such as the restrictions on freedom of movement, have had a disproportionate impact on the economic situation of rural indigenous communities. The trade union organizations also allege that certain indigenous communities have not benefited from health protocols to combat COVID-19 or from educational measures, such as courses via television, to which they did not have access. The Committee trusts that within the framework of the measures that the Government has reported have just been taken, it will be ensured that indigenous peoples benefit from appropriate protection against the COVID-19 pandemic and its consequences.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Institutions and national policy for indigenous peoples. In its earlier comments, the Committee noted the creation of the Office for Indigenous Peoples and Interculturality and of the process engaged for the development of the Indigenous Peoples and Interculturality Policy. It also noted the information regarding institutional instability, and the lack of a solid legal framework, budget and personnel to attend to the demands of the indigenous peoples. Accordingly, the Committee requested the Government to ensure the effective coordination and harmonization of the activities carried out by the different institutions responsible for implementing the rights provided in the Convention, defining their legal framework and ensuring the required resources.

The Committee notes from the Government’s report the establishment in January 2019 of the Special Social Development Office to replace the Office for Indigenous Peoples and Interculturality. The mandate of the new Office, which includes the Vice-President of the Republic, is to provide technical guidance on the design of development policies for indigenous peoples, coordinate the design and management of an action plan for indigenous peoples and interculturality, and support the development of indigenous institutions. The Committee notes that the Office has established six thematic working groups for the most excluded and vulnerable indigenous peoples, including the thematic working group on indigenous peoples. The mandate of this working group includes improving mechanisms for the management of the services provided by State institutions to indigenous peoples, promoting action for the development of consultation processes and a legislative agenda focused on indigenous peoples. The Committee notes the supplementary information provided by the Government in 2020 in which it indicates that responsibility for the thematic working group on indigenous peoples has been transferred to the Ministry of Labour and Social Welfare. It also notes the information on the activities and meetings held by this working group to address issues relating to the rights of indigenous peoples (such as their labour rights, the coordination and language training of personnel in State bodies that provide public services in indigenous communities, and the enforcement of judicial sentences). The Committee also observes that, in accordance with its mandate of inter-institutional coordination and cooperation, the working group carried out an orientation exercise with its members to identify areas for intervention in line with national priorities and indicators focusing on indigenous peoples.

The Committee notes from the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala that there are many dispersed, weak, underfunded and unstable indigenous institutions and services, a situation which hampers the establishment of effective public policies for indigenous peoples; they add that there is no effective mechanism enabling indigenous peoples to participate in areas of interest to them.

The Committee notes the changes made to the institutions competent to deal with matters relating to the peoples covered by the Convention, and particularly the establishment of the thematic working group on indigenous peoples in the Ministry of Labour and Social Welfare. The Committee trusts that the establishment of the thematic working group will contribute to the development of a robust and stable institutional framework for indigenous peoples. In this regard, the Committee requests the Government to provide information on the action taken by the thematic working group for indigenous peoples to ensure that the many bodies responsible for the matters covered by the Convention take systematic and coordinated action in cooperation with indigenous peoples. The Committee once again requests the Government to provide specific information on the means and resources available to the thematic working group for indigenous peoples and the other institutions dealing with matters concerning indigenous peoples to enable them to discharge their mandates, and information on the analyses conducted on the results of its actions.

The Government indicates that the formulation of the national policy for indigenous peoples was under the direction of the Office for Indigenous Peoples, and that its development is now the responsibility of the thematic working group for indigenous peoples. The Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate in their observations that neither the indigenous peoples nor the trade unions have been consulted on the proposed policy. In reply to these observations, the Government reports that the indigenous peoples have participated in the formulation of the policy since 2014 through community consultation days held in different locations to facilitate access and participation by local leaders. It adds that, for the holding of the community days, support was sought from institutions and organizations with a presence in the communities, such as the Academy of Maya Languages of Guatemala, the Office of the Defender of Indigenous Women, indigenous municipalities and local indigenous organizations. In its supplementary information, the Government indicates that the subject of the draft policy on indigenous peoples and interculturality 2019–2032 continues to be on the agenda of the thematic working group, which has established an inter-institutional steering committee with members of the General Secretariat of Planning and Programming of the Office of the President. However, this action has been left pending by the declared state of emergency in March 2020 due to the COVID-19 pandemic.

The Committee requests the Government to continue providing updated information on the progress made in the adoption of the policy on indigenous peoples and interculturality, indicating precisely how the participation of indigenous peoples has been secured in the development of the policy throughout the national territory, the contribution of these peoples to the draft policy and when it is envisaged that the policy will be finalized.

Implementation of the Peace Agreement. In its previous comments, the Committee referred to various commitments drawn up as part of the Agreement on Identity and Rights of Indigenous Peoples, part of the Peace Agreements of 1996, which have not been met, and it requested the Government to provide information on the measures adopted for their implementation. The Government reiterates that the Secretariat for Peace is responsible for follow-up and for coordinating the implementation of the Agreement on Identity and Rights of Indigenous Peoples, also providing technical, professional and logistical support. The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its 2019 concluding observations regarding Guatemala, reiterated its concern at the scant progress in implementing the Agreement on Identity and Rights of Indigenous Peoples, and at the absence of a human rights and gender focus in the implementation of the National Reparations Programme (Document CERD/C/GTM/CO/16-17). In the written information communicated to the Committee on the Application of Standards of the International Labour Conference in 2019, the Government reaffirmed its unrestricted interest and commitment in taking the necessary actions to give continuity to the fulfilment of those commitments that are pending or partially fulfilled. The Committee requests the Government to intensify its efforts to implement the Agreement on Identity and Rights of Indigenous Peoples, with the participation of the indigenous peoples, and to provide information on progress achieved, pointing to possible obstacles to its full implementation. The Committee also requests the Government to communicate information on the activities of the national compensation programme for victims of the armed conflict belonging to the indigenous peoples.

Article 3. Human rights. In previous comments, the Committee expressed its deep concern at the considerable increase in acts of violence and repression of social protests by indigenous peoples, and firmly urged the Government to take measures to investigate the acts of violence and to set in motion the relevant judicial proceedings to identify and penalize the perpetrators. The Committee notes the information provided by the Government on the current situation of the investigations undertaken by the Office of the Public Prosecutor and the progress in the criminal proceedings relating to four murders and attacks on the physical integrity of leaders and defenders of the indigenous peoples. It also notes the information provided by the Deputy Ministry of Security of the Ministry of the Interior on the risk analyses carried out by the Department for the Protection of Persons and Security and the security measures adopted for the family members and persons close to the murdered leaders. The Government indicates that since 2015 there have been no investigations directly related to the repression of social protest by indigenous peoples. The Committee also notes the information provided by the Office of the Public Prosecutor concerning 11 open cases of murder and threats against defenders and/or leaders of indigenous peoples, which are under investigation. With regard to the murder of indigenous persons during the social protests in Totonicapán in October 2012, referred to by the Committee in previous comments, the Government reports that the seven persons accused of those crimes have been placed under measures alternative to pretrial detention ordered by the criminal court of first instance. An appeal against those measures has been filed by the Office of the Public Prosecutor and the Association of 48 Cantons of Totonicapán.

The Committee notes from their observations that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala refer to the murder of two elected mayors of Maya origin, as well as to the persecution of indigenous communicators. It also notes, from its 2019 concluding observations concerning Guatemala, that CERD remains seriously concerned at the acts of violence, threats and attacks against indigenous and Afro-descendent leaders and rights defenders, and also at the improper use of criminal procedure to criminalize those defenders (CERD/C/GTM/CO/16-17). Moreover, the United Nations Committee against Torture (CAT), in its 2018 concluding observations on Guatemala, indicates that private security companies sometimes took on the functions of the National Civil Police, creating an environment of intimidation amongst the indigenous communities (CAT/C/GTM/CO/7). The Committee notes that the Government, in the written information submitted in 2019 to the Committee on the Application of Standards, refers to the development of a Public Protection Policy for Human Rights Defenders in Guatemala, and to the dissemination, at the national level, of the Guatemalan system for monitoring the recommendations of the international human rights protection systems.

The Committee notes this information and reiterates its deep concern at the persistent reports of murders and attacks against defenders of indigenous peoples and indigenous communicators, and also at the absence of information on judicial decisions determining responsibilities and penalizing the perpetrators. The Committee recalls that the rights enshrined in the Convention can only be exercised where fundamental human rights, especially those regarding life and security of the person, are fully respected and guaranteed. The Committee therefore once again firmly urges the Government to intensify its efforts to ensure progress in the investigations and proceedings to identify and penalize the perpetrators and instigators of the acts of violence and persecution of defenders of indigenous peoples and indigenous communicators. The Committee also requests the Government to provide information on the progress made in the adoption of the Public Protection Policy for Human Rights Defenders and the action envisaged under that policy to protect defenders of indigenous peoples’ rights.

Article 6. Appropriate consultation procedures. The Committee recalls that it has been raising the question of adopting appropriate consultation procedures in its comments for a number of years. In its previous observation, the Committee noted the existence of two Bills before Congress on consultations with indigenous peoples, but at the same time noted that the Government had not provided information on how indigenous peoples had been consulted regarding the Bills. The Committee also noted the related rulings of the Constitutional Court on the need for Congress to adopt legislation implementing consultation with indigenous peoples, as well as the social partners’ concerns at the lack of a regulatory framework for such consultation, developed in consultation with the indigenous peoples. The Government indicates that since 2007 five Bills on consultation have come before Congress. The Committee observes that the Government has not provided information on the current situation with regard to those Bills, nor on the consultation processes with indigenous peoples on their content. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that indigenous organizations rejected the consultation Bills, and that an attempt had been made to take the mere presence of indigenous peoples at the events organized by the Ministry of Labour and Social Welfare as signalling their support for the Bills. The Committee also notes from its observations that the CACIF recognizes the efforts made by the Executive to promote a procedure that would give legal certainty to the process of prior consultation. Nevertheless, the Committee reiterates its concern at the absence of an established procedure on the right to consultation, a situation which has led to contradictory legal rulings. In reply, the Government indicates that the Congressional Labour Committee convened the representative organizations of indigenous peoples and interested bodies to a public hearing in October 2019 to disseminate and discuss the content of a consultation Bill. The Committee notes, from the Government’s reply to the trade union’s observations, that the convocation was for a one-day hearing, it was written only in Spanish and restricted participation by indigenous peoples to two persons per organization. In the supplementary information provided in 2020, the Government provides a copy of the above-mentioned Bill submitted to the Legislative Steering Committee of Congress on 22 October 2019. The CACIF, in its 2020 observations, refers to the advisory opinion issued by the Constitutional Court in July 2020, in which it reiterates that the consultation procedure must be regulated by the Congress of the Republic through a legal provision, and emphasizes the importance of adopting legislation containing the necessary provisions to establish a consultation procedure in the country.

The Committee recalls that it is important for governments to establish, as a matter of priority and with the participation of the indigenous and tribal peoples, appropriate procedures for consulting the representative organizations of these peoples. In this regard, it reiterates the importance of holding prior consultations with the indigenous peoples before establishing those procedures (see General observations of 2010 and 2018). It also recalls that the consultations must be formal, full and aimed at producing genuine dialogue between governments and indigenous peoples, for which sufficient time must be given to these peoples to organize their own decision-making processes and to participate effectively in the decisions adopted. Based on these criteria and the information provided by the Government and the social partners, the Committee once again urges the Government to institute a consultation process with indigenous peoples with a view to discussing and subsequently adopting an appropriate consultation procedure with indigenous peoples, and requests the Government to provide information in that regard. The Committee encourages all interested parties to make every effort to participate in good faith in the process, with the aim of engaging in constructive dialogue that will lead to positive results. The Committee reiterates its request for information on the consultation processes engaged with the indigenous peoples, the methods employed, the entity directing the processes and the framework supporting them.

Article 14. Lands. In its previous comments, the Committee noted that the information provided by the Government on the implementation of the Programme for the regularization and allocation of State land showed no progress in terms of identifying and registering the communal lands of the peoples covered by the Convention. The Committee requested the Government to adopt measures without delay to protect the land rights of the indigenous peoples, and to provide information on the areas of lands titled, together with information on the application in practice of the national regulations on communal lands. The Government indicates that under the specific Regulation for the recognition and declaration of communal lands of 2009, the Cadastral Information Registry (RIC) had visited the communities to disseminate the Regulation and had conducted initial surveys of the communal lands. The Committee notes that the regulation cited establishes the requirement of consultation with the indigenous communities prior to cadastral survey in respect of lands the property of, in possession or tenure of, those communities. Between 2005 and 2019, the RIC carried out 36 surveys in the same number of communities where the lands could potentially be declared communal, and 11 communities have been thus recognized. In the written information submitted in 2019 to the Committee on the Application of Standards, the Government indicated that, given the socio-cultural characteristics of the country, the process for the recognition and declaration of lands as communal is slow. The Committee urges the Government to intensify its efforts in adopting the measures necessary to accelerate the process of identification, titling and registration of the lands that the indigenous peoples have traditionally occupied. In that regard, the Committee requests the Government to provide detailed information on progress made and the difficulties arising in those processes, and also on the manner in which indigenous peoples participate in their implementation.

In its previous comments, the Committee noted that the Secretariat for Agrarian Affairs had made efforts to facilitate the settlement of agrarian disputes, and requested the Government to provide information on resolved and pending conflicts. The Government replies that between 2015 and 2019, the Secretariat for Agrarian Matters dealt with a total of 1,484 cases, involving 2,149 persons belonging to different ethnic communities. It also informs the Committee that the Presidential Dialogue Commission, within which different Government entities and civil society groups interact, has taken up ten cases related to land and natural resources conflicts. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate the persistent lack of protection of the collective property of indigenous peoples. Moreover, it further notes that CERD, in its 2019 concluding observations regarding Guatemala, refers to reports that indigenous peoples have been forcibly evicted from their territories without appropriate legal protection and, in some cases, through the use of excessive force (CERD/C/GTM/CO/16-17). The Committee urges the Government to take the appropriate measures to investigate the cases of eviction involving indigenous communities and to ensure that those communities have adequate means of defending their rights. The Committee requests the Government to continue providing information on the number of land conflicts dealt with and resolved through the efforts of the Secretariat for Agrarian Matters and the Presidential Dialogue Commission, giving examples of agreements reached.

Articles 6 and 15. Consultation, natural resources. Sacatepéquez cement plant. Since 2011, the Committee has been noting the conflict in San Juan Sacatepéquez related to the project to construct a cement plant and the Government’s attempts to promote dialogue between the enterprise mounting the project and the indigenous communities. In its last comments, the Committee requested the Government to provide information on the Peace and Development Framework Agreement signed between the San Juan Sacatepéquez municipality, the Government and 12 indigenous communities under which it was agreed to foster a climate of trust, seek out-of-court solutions to criminal proceedings, and aim to provide special assistance for victims of the cement plant construction. In that regard, the Government replies that in 2017 and 2018 the Presidential Dialogue Commission had approached the actors interested in transforming the conflict and letters of understanding had been signed, reaffirming cooperation between the communities, the Cementos Progreso Company, responsible for the cement plant, and the municipality of San Juan Sacatepéquez. It indicates that the enterprise, in coordination with the municipality, continues to undertake projects that are beneficial to the communities of Asunción Chivoc y Cruz Blanca, las Trojes 1, Santa Fe Ocaña, and Pajoques y Pilar 1. The Committee duly notes the Government’s indication that dialogue has been hampered by demonstrations led by mayors and community leaders against the regional ring road projected by the cement company in San Antonio Las Trojes. It notes from the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala that conflict and violence persist between those in favour and those against the projects of the Cementos Progresos enterprise; and that some members of the San Juan Sacatepéquez communities, who had engaged in passive resistance, have been victims of human rights violations. The Committee, while taking due note of the Government’s reaffirmed commitment to implement an immediate action plan answering to the communities’ concerns with participation, compromise and a role for the communities and their representatives, observes that some indigenous communities are still in conflict with the local government regarding the San Juan Sacatepéquez cement plant project. The Committee therefore encourages the Government to continue taking all necessary measures to restore the climate of trust and dialogue between the local government, the enterprise and all the communities affected by the project. The Committee requests the Government to provide specific information on progress in fulfilling the Peace and Development Framework Agreement, and the ways in which the indigenous communities concerned have been involved in its implementation. It also requests the Government to provide information on the measures taken to investigate the allegations regarding violations of the rights of members of indigenous communities communicated by the trade unions.

Review of mining legislation. In its previous comments, the Committee reminded the Government of the need to take steps to bring the mining legislation into line with the Convention’s requirements of consultation and participation. The Committee notes that the Ministry of Energy and Mines has set up a Revision Committee to draft reforms of the Mining Act with a view to including the content of Articles 6 and 15 of the Convention. It notes that six reform initiatives of that Act are currently before Congress, together with a number of Constitutional Court rulings setting forth consultations with the communities affected by the mining projects. In its observations, the CACIF stresses the innumerable economic losses, including the loss of jobs, brought about by the suspension of the mining projects in the absence of a clear consultation process. The Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that the Government has not complied with the order to hold consultations issued by the Constitutional Court in respect of various mining projects, and that the territories inhabited by the indigenous peoples continue to be laid open for extractive projects, with no participation by the communities affected. In that connection, the Government replies that in the absence of legislation on consultation in the country, the Constitutional Court’s guidelines have been followed, and that the Ministry of Energy and Mining has ensured the establishment of forums for the inclusion and participation of indigenous representatives in areas where they can influence the projects.

The Committee notes with concern the ongoing lack of a mechanism for clear and systematic consultations with the indigenous peoples applicable to the natural resources extraction projects in their territories, resulting in a number of judicial rulings of non-compliance with the obligation to consult. In this regard, the Committee once again urges the Government to take all measures necessary to ensure that the mining legislation is in accordance with Articles 6 and 15 of the Convention and that appropriate consultation procedures with the indigenous peoples are in place, designed in consultation with the peoples in question, in coordination with all institutions concerned, and aimed at establishing a climate of trust and legal certainty. The Committee emphasizes that the establishment of effective consultation procedures helps to prevent and resolve conflicts through dialogue, and reduces social tension.

The Committee hopes that the technical assistance that the Office has been providing the Government for the implementation of Convention No. 169 will help to address the matters raised in its comments and promote the full application of the Convention, and particularly the rights of the indigenous peoples enshrined therein.

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

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Article 1 of the Convention. The Committee notes the detailed information provided by the Government from the Statistical Compendium on Indigenous Peoples, compiled in 2015 by the National Statistics Institute. According to these data, 5,770,479 persons self-identify as belonging to the Maya, Xinka or Garifuna peoples (around 40 per cent of the population), the Government highlights, however, that the Academy of Mayan Languages of Guatemala indicates that the official percentage of indigenous peoples that live in the country does not correspond to the estimated numbers established by the Mayan linguistic communities due to factors related to the use of inadequate procedures and tools for census, sub-registry, as well as to factors related to the self-identification of the persons during the census. In this respect, the Government states that between July and August 2018, the XII Population Census was conducted, in the context of which an awareness-raising campaign was launched aimed at promoting self-identification among the indigenous peoples as a way of contributing to respect for their identity. The census included questions relating to the ethnic identity of persons, based on self-identification, mother tongue and attire. In this respect, the Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala regret that the awareness-raising campaign did not have greater communicative value and that indigenous organizations and authorities were not included. The Committee requests the Government to communicate the results of the XII Population Census of 2018, providing statistical data disaggregated by the indigenous communities covered, the regions of the country in which they live and their socio-economic conditions.

Articles 2 and 33. Commitments under the Peace Agreement. The Committee takes note of the adoption in April 2017 of the Political Peace Agenda 2017–2026, adopted in April 2017 by the Presidential Secretariat for Peace, which details the status of compliance with the Peace Agreements of 1996 in order to guide and facilitate implementation of pending commitments. In this respect, the Committee notes that according to that Agenda, of a total of 118 commitments drawn up as part of the Agreement on Identity and Rights of Indigenous People, 25 have been fully met while 56 have been partially met and 26 have not been met. The commitments that have been fulfilled are: the guarantee of free access for persons belonging to indigenous peoples to the various branches of public service; the establishment of offices for the defence of indigenous rights; the legal recognition of indigenous languages and the use of indigenous dress in all areas of national life; and the promotion of respect for cultural diversity in education plans. However, unfulfilled commitments include the recognition and protection of the different forms of spirituality practised by the Maya, Garifuna and Xinca people; the promotion of the use of information and communication technologies by the indigenous peoples, aimed at developing their identity; the recognition of the right of indigenous peoples, in the context of municipal autonomy, to decide on the development priorities relating to education, health, culture and infrastructure; and the establishment of an inventory on land tenure at the municipal level. The Committee requests the Government to provide information on the measures adopted to comply with all the commitments set out in the Agreement on Identity and Rights of Indigenous People, indicating the involvement of the indigenous peoples and their representatives in that respect.

Articles 6, 7 and 15. Consultations. Natural resources. Project for the construction of a cement plant in the San Juan Sacatepéquez municipality (department of Guatemala). Since 2008, the Committee has been examining the conflict situation relating to the construction of a cement plant in San Juan de Sacatepéquez. The Committee recalls that, in its ruling of 21 December 2009, the Constitutional Court ordered the holding of the consultations required by the Convention (Case No. 3878-2007). The Committee noted the various initiatives undertaken to facilitate dialogue and negotiations among the various interested parties and requested the Government to provide information on the measures taken to, within the framework of the dialogue mechanisms trusted by the parties, hold negotiations in good faith and in line with the Convention, in relation to the cement plant project.

The Committee notes the Government’s indication that progress has been made in the signing of a Peace and Development Framework Agreement by 12 Kackchiqueles communities, the San Juan de Sacatepéquez municipality and the Government. Under the “Peace” section of the agreement, the parties agreed in particular to: foster a climate of trust; seek harmony and rebuild the social fabric; establish out-of-court arrangements, where possible, instead of court proceedings; and establish special assistance for victims. Under the “Comprehensive development” section, communities gave their consent for a regional ring road and for the development of the San Gabriel Project, with direct and tangible benefits for the communities. In addition, the Government undertook to formulate and carry out an “immediate action plan” to respond to the communities’ requests, with the active participation and commitment of them and their representatives. In its observations, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) considers that the Peace and Development Framework Agreement constitutes significant progress in the negotiations between the parties.

The Committee requests the Government to provide information on the implementation of the Peace and Development Framework Agreement, indicating how the participation of the peoples concerned is guaranteed in the measures adopted for that purpose, as well as on any obstacles encountered and the measures adopted to overcome them.

Article 8. Customary law. The Committee notes the Government’s indication that line 3.1 of the Strategic Plan 2015–2019 of the Public Prosecution Service covers the strengthening of relations between the Public Prosecution Service and the indigenous peoples for the coordination of cases before the indigenous and the formal justice system. In this respect, the Government emphasizes that the Ministry for Indigenous Peoples is competent to formulate coordination and communication mechanisms on indigenous peoples’ rights, between the justice institutions and the indigenous authorities. The Government also indicates that the 15 offices for the defence of indigenous rights of the Criminal Public Defence Institute continues to offer culturally and linguistically relevant assistance to persons belonging to the Maya, Garifuna, Xinka and Mestizo peoples. The Institute focuses on hiring indigenous persons who master the language of the region and who have an awareness of the issue of indigenous peoples’ rights. The Government provides information on the training activities carried out between 2015 and 2017 to strengthen the knowledge of public defenders, aides and administrative personnel in providing culturally relevant assistance. It also provides a list of culturally relevant rulings imposed by various jurisdictional bodies.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that the state institutions still do not recognize indigenous peoples’ right to operate their own justice system, and report cases in which indigenous justice was not recognized.

The Committee requests the Government to continue taking measures to promote coordination and communication mechanisms between the justice institutions and the indigenous authorities so that they take into consideration indigenous peoples’ customs and customary law when national legislation is applied to them. Please provide examples of decision in which the customs or customary laws of indigenous peoples have been taken into consideration.

Article 12. Legal proceedings. The Committee notes the Government’s information that, in order to facilitate indigenous peoples’ access to justice that is geographically, linguistically, culturally and judicially relevant, the indigenous affairs unit of the judiciary became the Indigenous Peoples’ Department. This institution coordinates the implementation of the protocol for the provision of assistance to indigenous women in accessing justice. In addition, a centre was established for interpretation of indigenous peoples’ languages, based in nine departments, which has made a series of documents (glossaries, translations of rulings etc.). The Government reports that the Office for the Defence of Indigenous Women’s Rights promotes activities for the prevention of violence against indigenous women through the implementation of the Community Outreach Strategy in communities experiencing violence, and carries out actions to restore their rights.

The Committee notes that the Special Rapporteur on the rights of indigenous peoples, in her report on her visit to Guatemala in 2018, notes that, despite the efforts of the Government through the Public Prosecution Service to facilitate access to justice for indigenous peoples, discrimination and racism persist, particularly against indigenous women, when they apply to the courts at the local level (A/HRC/39/17/Add.3, paragraphs 81 and 82). The Committee encourages the Government to continue to take measures to guarantee effective access to justice for indigenous peoples in order to ensure that they can initiate individual or collective legal proceedings to effectively protect their rights.

Article 15(2). Mining concessions and hydroelectric projects. The Committee recalls that, since several years, it has been requesting the Government to take the necessary measures to bring the Mining Act into conformity with the requirements concerning prior consultation and participation in benefits set out in the Convention and other relevant legislation, particularly the General Electricity Act. Likewise, on various occasions the Committee has examined comments by trade unions on serious situations relating to the lack of consultation and the exploitation of natural resources, and has requested the Government to establish mechanisms for dialogue and participation which have the confidence of the parties, and can be used to determine whether and to what degree their interests have been prejudiced. The Committee requested, in particular, information on the consultations and participation by indigenous communities in the benefits deriving from the mining activities of the Marlín mine in San Miguel Ixtahuacán (department of San Marcos) and the mining of nickel and other minerals in the territory of the Q’eqchi people in the municipality of El Estor (department of Izábal). In relation to the nickel mine in the municipality of El Estor, the Government indicates that, before granting a mining permit, it carried out prior consultations with the indigenous communities affected through the Ministry of Energy and Mining. The Committee notes that, according to the Government’s indications, following a reform of the Mining Act, since 2015 the percentage of royalties paid to the communities has risen by 100 per cent.

The Committee notes that the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) indicates that the State has not taken any appropriate measures to bring national legislation into conformity with the Convention and has continued to grant natural resource exploration and exploitation licences, especially in the mining sector, without prior consultation with the indigenous peoples. The MSICG provides a list of 48 decisions issued by the General Mining Directorate which grants exploration licences; and a list of 42 decisions issued by the Ministry of Energy and Mining which grants exploitation licences, between 1997 and 2015, with respect to which the MSICG considers that the right of consultation with indigenous peoples has not been respected. The MSICG considers that the Government should refrain from granting licences as long as the legislation has not been amended and consultations are not held as part of the rules and procedures established together with the indigenous peoples.

The Committee notes the Government’s detailed information on the activities carried out to comply with the decisions of the Constitutional Court relating to the Vega I and Vega II hydroelectric power plants, in the Santa María Nebaj municipality in the department of Quiché. In its decisions, it ordered the Ministry of Energy and Mining to initiate a consultation process with the indigenous Maya Ixiles peoples, regarding the construction of the plants. The Government indicates that the Deputy Minister for Sustainable Development has taken steps to set up a consultation, including training and information workshops with the communities. The Committee also notes the actions carried out by the Ministry of Labour and Social Security to comply with the decision of the Constitutional Court relating to the “Uspatán and Chixoy II underground project and the Uspatán-Chixoy II transmission line”, in which the Government is requested to conduct prior consultations with the affected communities of San Juan Cotzal of the Quiché department. In this respect, the Government indicates that: (1) preparatory meetings were held with the municipal and indigenous authorities aimed at ensuring a climate of trust and respect throughout the process; and (2) the consultations were a means of reaching agreement or consent among the State, enterprises and the indigenous Maya Ixiles peoples on the legislative or administrative measures that might directly affect them

The Committee recalls in this respect that appropriate regulations on consultation aimed at determining the degree to which the indigenous peoples’ interests would be affected by programmes for the exploration or exploitation of resources pertaining to their lands, in conformity with Article 15 of the Convention, help to reduce social conflict surrounding those programmes and to lay the foundations for inclusive sustainable development processes. The Committee encourages the Government to, through a revision of the legal framework concerning programmes for the exploration or exploitation of natural resources, including the Mining Act, ensure compliance with Articles 6 and 15 of the Convention as regards prior consultation. The Committee requests the Government to provide information on any reforms it has adopted or plans to adopt in this regard.

Article 20. 1. Conditions of employment. In its previous comments, the Committee requested information on measures adopted by the General Labour Inspectorate to ensure that indigenous workers, including seasonal, casual and migrant workers in agriculture, are not subjected to exploitative or abusive conditions of work. The Government indicates that its plans for the agricultural sector include the inspection programme for the sugar cane planting, harvesting and transporting sector, or the inspection plan for the African palm production sector. The Government indicates that the General Labour Inspectorate is developing a strategic plan to broaden coverage through the number of inspectors and offices in the country.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that: (1) the situation of poverty among the indigenous population is closely linked to their deplorable conditions of work; (2) over half of the population occupied in the rural sector is indigenous, including agricultural workers on their own account and day labourers who are employed for other people; and (3) there is a high rate of labour rights violations in the country in general, but especially in the rural areas.

The Committee requests the Government to provide information on the measures taken to ensure that the labour inspectorate can effectively perform its activities in the agricultural sector, and in particular in the areas and jobs in which primarily indigenous people are occupied.

2. Training and admission to employment. The Committee notes the information provided by the Government on the mechanisms intended to promote the employability of vulnerable groups of the population, including grants and technical training programmes. Among the 2,834 beneficiaries of training programmes in 2017 were 1,671 Ladino, 1,063 Maya, 27 Garifuna and two Xinca people (71 are not specified). The Government also provides information on the courses for tourism training and on the members of indigenous peoples who received the services of the Technical Institute of Training and Productivity (INECAP). The Committee encourages the Government to continue to provide information on the measures taken to promote access to training and employment for the indigenous communities, and their impact.

Articles 24 and 25. Health. The Committee previously requested the Government to provide information on the health services in the regions. The Government refers to the adoption of the national policy on midwives belonging to the four peoples of Guatemala for 2015–25, emphasizing that the community work and services of the midwives, mainly concerning prevention, promotion and assistance regarding women’s and newborns’ health, contribute to an improvement in health conditions in the country. The Committee notes with interest that the development of the policy included the participation of midwives belonging to the Maya, Xinka, Garifuna and Mestizo communities in the dialogues that were part of this process, taking into account their socio-cultural and linguistic backgrounds. The Government also provides general information on the national hospitals, and the health centres and posts in the country. Regarding nutritional and food security, the Government indicates that in 2016 the national strategy to prevent chronic malnutrition was launched, as well as the response plan for seasonal hunger aimed at the Maya, Xinka and Ladino communities living in the municipalities of the departments along the Dry Corridor.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala refer to the National Survey on Maternal and Child Health 2014–2015 according to which 47 per cent of children under 5 suffer from chronic malnutrition. The survey shows that in the indigenous group, 58 per cent of children have chronic malnutrition and 23 have severe chronic malnutrition. In the non-indigenous group, however, the prevalence of chronic malnutrition is 34 per cent, and 10 per cent for severe chronic malnutrition.

The Committee encourages the Government to continue to take necessary measures to make appropriate health services available to the indigenous peoples. The Committee also requests the Government to provide information on the measures taken within the framework of the national strategy to prevent chronic malnutrition, and their impact, in particular on indigenous children.

Article 27. Education. In reply to the Committee’s previous comments on activities carried out in the field of bilingual education, the Government refers to the strengthening of teacher training, among other measures. It indicates that initial teacher training consists of a general component where teachers receive the same training and a specialization stage with a specific focus on intercultural and bilingual issues, and physical education training. In this context, the higher vocational teachers’ programme offers four specializations: bilingual intercultural teaching, intercultural teaching, development and productivity teaching, and physical education teaching. In 2017, the pre-primary and primary intercultural education degree programme was launched, with a focus on intercultural bilingual education in 126 venues. A total of 7,791 students registered at both levels (1,596 for pre-primary and 6,195 for primary). The Government also refers to the role of the Guatemalan Academy of Mayan Languages, which is formulating a teacher training programme for the development of linguistic and methodological skills for teaching the Mayan language. In this respect, teachers who provide bilingual classroom teaching, thereby reinforcing pupils’ sense of cultural and linguistic belonging, receive a bilingualism bonus. The Committee notes this information and the data provided in this area and on participation rates in literacy programmes, disaggregated by department, ethnicity and gender. The Committee encourages the Government to continue making efforts to implement the bilingual education policy and requests it to continue to provide statistical information in this regard as well as on the attendance rates of indigenous peoples in pre-primary, primary and secondary establishments, and universities, compared with the rest of the population.

Article 30. Use of mass communications. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that, in recent years, many acts of repression have been committed against indigenous peoples’ media, especially against community radio stations, on grounds of a lack of legislation to regulate and protect community communications. The Committee recalls the importance of the use of mass communications in the languages of indigenous peoples in order to inform them of their rights and obligations and requests the Government to provide information regarding the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala.

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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.

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The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) and the International Organisation of Employers (IOE), received on 29 August 2015. The Committee requests the Government to provide its comments on these observations in the report due in 2016. The Committee recalls that the report due in 2016 must contain the information requested in the 2013 observation and direct request. In this connection, the Committee again asks the Government to consult the social partners and the indigenous organizations concerned in preparing its report.

[The Government is asked to reply in detail to the present comments in 2016.]

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The Committee notes the statistical data obtained in 2011 submitted by the Government in its report, disaggregated by area, illiteracy rate in Spanish and Maya, and employment and poverty indicators. The Committee invites the Government to continue providing updated statistical data disaggregated by the indigenous communities covered by the Convention (Article 1 of the Convention) and copies of court rulings involving matters relating to the application of the Convention (Part IV of the report form).

Parts I and VIII of the Convention. General policy. Administration. Articles 2 and 33. The Committee notes the activities of the various public bodies, such as the Judicial Administration, the National Council of the Peace Agreements and the Guatemalan Indigenous Development Fund intended to promote programmes for the application of the Convention. The Committee invites the Government to continue making efforts, in collaboration with indigenous peoples, for the establishment of a mechanism ensuring coordinated and systematic action through public policies, as required by the Convention. Please indicate the resources available to the various bodies mentioned for the appropriate discharge of their functions.

Part II. Lands. Article 14. The Committee once again requests the Government to indicate the impact of the rural development and agrarian policy measures adopted to ensure recognition of the right of indigenous peoples to ownership and possession of the lands that they traditionally occupy. In this regard, the Committee reiterates its request to the Government to provide information on the application in practice of Decree No. 41-2005 and its implementing Regulations of 2009 on communal lands. The Committee once again expresses interest in examining updated information on developments in the land disputes at the estates referred to in its 2011 and 2012 observations.

Part III. Recruitment and conditions of employment. Article 20. The Government provides information on the annual specific and regional plan for 2014 of the General Labour Inspectorate by production sector. The Committee requests the Government to provide information enabling it to assess the manner in which the measures adopted by the General Labour Inspectorate have ensured that indigenous workers, including seasonal, casual and migrant workers in agriculture, are not subjected to exploitative or abusive recruitment or conditions of work. The Committee requests the Government to provide information on the specific measures adopted by the General Labour Inspectorate to ensure the effective protection of the labour rights of indigenous peoples.

Part V. Social security. Health. With reference to the Committee’s previous comments, the Government indicates that the activities of the Guatemalan Social Security Institute (IGSS) benefit all the inhabitants of the country without distinction. The infrastructure of the IGSS has been extended with a view to expanding coverage in regions in which indigenous peoples are concentrated. The Committee requests the Government to include updated information on the social security schemes that protect the peoples concerned and the health services that exist in the regions inhabited by these peoples.

Part VI. Education. Article 27. The Committee notes with interest the measures in force enumerated by the Government which are intended to ensure that the peoples concerned benefit from bilingual education at all levels. The Government also provides data on schools disaggregated by the type of establishment, number of teachers per department and educational level. The Committee invites the Government to continue providing statistical and documentary information illustrating the manner in which the activities carried out in the field of bilingual education address the special needs of indigenous peoples.

[The Government is asked to reply in detail to the present comments in 2016.]

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The Committee notes the Government’s report received in August 2014 which includes observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF). It also notes the communication of September 2014 in which the International Organisation of Employers (IOE) included Guatemala in its observations on the application of the Convention. In addition, the Committee notes the observations made by the Trade Union of Workers of Guatemala (UNSITRAGUA), of 28 August 2014, the observations of the Guatemalan Union, Indigenous and Peasant Movement (MSICG), of 29 August 2014, and of the General Confederation of Workers of Guatemala (CGTG), of 1 September 2014. The Committee requests the Government to provide its comments in this respect.

Article 3 of the Convention. Human rights. In the alternative report prepared by the Council of Mayan Organizations of Guatemala (COMG), forwarded in December 2012 by the Central Confederation of Rural and Urban Workers (CCTCC), reference was made to the events of 4 October 2012 in a social protest held in Totonicapán, which resulted in the death of eight indigenous persons and 35 injured persons. The Government provides detailed information from the Office of the Public Prosecutor and its office for the District of Totonicapán identifying those who are being prosecuted and have been charged with crimes committed during the events. In light of the concerns expressed by the indigenous organizations and the gravity of the events, the Committee requests 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. Please provide updated information on the court cases relating to the events in Totonicapán and the rulings handed down in relation to the persons prosecuted in this case.

Articles 6 and 7. Appropriate consultation and participation mechanism. With reference to its previous comments, the Government provides information on the exchanges between representatives of indigenous authorities from some municipal areas in the department of El Quiche and the other consultation meetings held during 2014. The Government indicates that, as a result of these exchanges and consultations, a draft protocol has been prepared to implement the right of indigenous peoples to prior consultation. This document was submitted to the Tripartite Committee for International Affairs on 8 May 2014 so that the social partners could make their comments. The Committee notes that in August 2014 the Government has still not received the comments of the social partners. The Committee also notes the indications provided by the Constitutional Court in the Government’s report relating to the recognition of the right of consultation of indigenous peoples. The Constitutional Court explains the scope of its decisions concerning consultations and indicates that in certain cases the outcome of such consultations may not be binding. The Committee notes that the rulings of the Constitutional Court are binding on the public authorities and State bodies. The Committee hopes that a constructive dialogue is continuing in the country for the establishment of an appropriate consultation and participation mechanism. The Committee requests the Government to continue providing information on the results achieved, with the participation of representative bodies of indigenous peoples, to develop suitable means of regulating prior consultations.

Articles 6, 7 and 15. Consultation. National resources. Project for the construction of a cement plant in the municipality of San Juan Sacatepéquez (department of Guatemala). With reference to the comments that the Committee has been making since 2008, the Government recalls that the Constitutional Court in case No. 3878-2007, in its ruling of 21 December 2009, ordered the holding of the consultations required by the Convention on matters affected by the construction of a cement plant by Cementos Progreso. In this respect, the Committee notes the detailed information added to the report by the CACIF in relation to the project. The Committee expresses appreciation of the detailed documentation provided by the CACIF on the dialogue held in June 2014 between the representatives of the 12 communities of San Juan Sacatepéquez and the President of the Republic, accompanied by other national authorities. The agenda of the dialogue included the construction of a road in relation to the cement plant, the installation of a military brigade in the area and concerns relating to the criminalization of members of communities who complain about the project for the construction of the cement plant. The Committee notes the documentation provided by the enterprise Cementos Progreso on the structure of dialogue at the municipal level to facilitate negotiations at the local and community levels. The Committee notes the information that the enterprise has undertaken social investment projects and the technical documentation on the monitoring of air, noise and water captured in the area affected by the cement plant project. The enterprise indicates that it is aware of the divergent opinions concerning the project and guarantees that the construction process will be carried out in compliance with the legislation and with high production standards, and particularly in accordance with the priorities, interests and property of its neighbours. Under these conditions, the Committee reiterates the requests made in its previous comments concerning the solutions proposed to ensure that a cement factory established in the area takes into account the interests and priorities of the affected Maya Kaqchikel communities, and that there are no harmful effects on the health, culture and property of those communities. The Committee reiterates its request for all the parties concerned to refrain from any acts of intimidation and of violence against persons who do not share their views on the project. The Committee invites the Government to provide information in its next report on developments in the good faith negotiations held in accordance with the Convention relating to the cement plant project.

Mining concessions and hydroelectric projects. The Committee notes a document focusing on the Ixil, K’iche, Q’eqch’ and Uspanteco Maya peoples and territories in the department of El Quiche, prepared by the Asociación Tejedores de Vida, which was submitted by UNSITRAGUA. The Committee notes the concern expressed by the MSICG and UNSITRAGUA relating to the social conflict caused by the imposition of hydroelectric and mining projects without the required prior consultation with the indigenous communities affected. The Committee also notes the ruling of the Constitutional Court in case No. 4419 2011, dated 5 February 2011, examining, among other matters, the lack of consultation during the procedure for the authorization of operations by the hydroelectric industry. In the comments that it has been making for several years, the Committee has requested the Government to provide updated information on the consultations and participation by indigenous communities in the benefits deriving from the mining activities of the Marlín mine in San Miguel Ixtahuacán (department of San Marcos) and the mining of nickel and other minerals in the territory of the Q’eqchi people in the municipality of El Estor (department of Izábal, see also GB.299/6/1, November 2007). The Committee observes that the Government’s report does not contain information on that issue. The Committee refers to its previous comments and urges the Government to provide updated information on consultations with the indigenous communities affected and their participation in the benefits deriving from the mining activities in the Marlín and El Estor mines. The Committee reiterates its interest in examining information on the measures taken in practice to bring the Mining Act and other relevant legislation, and particularly the General Electricity Act, into conformity with the requirements concerning prior consultation and participation in benefits set out in the Convention.

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

[The Government is asked to reply in detail to the present comments in 2016.]

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Appropriate consultation and participation mechanism. The Committee notes the information in the report received in August 2013 relating to the meetings facilitated by the Government which took place between a tripartite group and indigenous peoples, in particular in Chichicastenango (department of El Quiché). In June 2013, the indigenous communities of El Quiché department established their position on the consultation process. The Government indicates that the establishment of closer contacts with the indigenous peoples is connected with the Mayan world view in which the time factor is evidence of trust and good faith. The Government recognizes that, according to the Mayan world view, the process must not be rushed and must be undertaken in accordance with the usages and customs of each people. The Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) states in a communication received in August 2013 that it views positively the efforts that have been made to adopt regulations for implementing the Convention, particularly in relation to the right to consultation. CACIF indicates that it will continue to participate in the tripartite meetings with indigenous leaders, with a view to gathering their views on the form which such consultations should take, so as to contribute to the due application of the Convention. The Committee refers to its observation of 2012, in which it referred to the guidance given by the Constitutional Court concerning the regulation of prior consultation with indigenous peoples through appropriate means. The Committee recalls that the Office is offering assistance to all the parties concerned to facilitate the establishment of appropriate consultation and participation mechanism, as required by Articles 6, 7 and 15 of the Convention. The Committee understands that a constructive dialogue is developing and requests the Government to include up to-date information in its next report enabling an evaluation of measures taken:

• (i) to establish appropriate consultation and participation mechanism in accordance with the Convention, taking into account its general observation of 2010;
• (ii) to ensure that indigenous peoples are consulted and can participate in an appropriate manner, through their representative institutions, in the establishment of this mechanism in such a way as to be able to express their opinions and influence the final outcome;
• (iii) to make use of the provisional mechanism for consultation of indigenous peoples, and to apply in practice section 26 of the Act concerning urban and rural development councils; and
• (iv) to bring the existing legislation, including the Mining Act, into conformity with the Convention.

Report of the Human Rights Ombudsman of Guatemala. In September 2013, the Committee received a report that had been produced specially by the Office of the Human Rights Ombudsman of Guatemala, in which it indicates that the situation of indigenous peoples has not improved and expresses concern for the lack of regulation on the right to consultation in the country. The Committee invites the Government to take account of the aforementioned report when drawing up its next report and to include any comments it may wish to make in this regard.

Communication (2012) 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 (2012) from the Council of Mayan Organizations of Guatemala (COMG). Communication (2013) from the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) and the CGTG. In September 2012, the Office transmitted to the Government a communication from the three trade union confederations concerning the lack of regulation of the right to consultation and the pending legislative amendments relating to mining and environmental health. On 4 December 2012, the Office also received a communication from the Central Confederation of Rural and Urban Workers (CCTCC) submitting an alternative report prepared by the COMG. Among other issues related to the application of the Convention, the alternative report referred to the demonstration that took place on 4 October 2012 in Totonicapán, which resulted in the deaths of eight indigenous persons and injuries to another 35. In September 2013, the Office transmitted to the Government the observations from the MSICG concerning the moratorium on the granting of licences for exploration and exploitation of natural resources, and the situation at the San Rafael mine (department of Santa Rosa). The CGTG states that the opportunity afforded by the application of the Convention to national issues is being wasted, particularly as regards the obligation to consult the indigenous peoples. The Committee requests the Government to provide information on the measures taken to investigate the events that occurred in Totonicapán. The Government is also requested to include detailed information on the measures taken to ensure observance of the Convention in the situations described by the social partners and the indigenous peoples’ organizations (Parts VII and VIII of the report form).

Project for the construction of a cement plant in the municipality of San Juan Sacatepéquez (department of Guatemala). The Committee previously examined developments in the situation in the municipality of San Juan Sacatepéquez in 2011 and 2012. The CACIF indicates in the communication received in August 2013 that the enterprise involved in the construction of the cement plant supports the establishment of indigenous institutions that promote development and enable progress to be made, by means of joint actions, in the creation of improved conditions for San Juan. The Committee invites the Government to provide up to-date information in its next report on the progress made in good faith negotiations, in accordance with Articles 6, 7 and 15 of the Convention, relating to the abovementioned project. The Committee requests the Government:

• (i) to indicate how the solutions proposed for the establishment of a cement factory in San Juan Sacatepéquez have taken into account the interests and priorities of the Maya Kaqchikel 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 Kaqchikel communities residing in the area, and draws the Government’s attention to Article 7(3) and (4) of the Convention; and
• (iii) to take the necessary measures to guarantee the physical 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.

Association of indigenous employers. The Committee notes the information sent by the CACIF concerning the establishment in December 2012 of an association of indigenous employers, which has been proposed to support economic growth embracing identity. The Committee hopes that future reports will include information on the impact of the setting up of the Association of Indigenous Employers on the application of the Convention.

Observing that the Government’s report received in August 2013 does not cover the other points examined in the comments made in 2011 and 2012, the Committee requests the Government to include detailed information in its next report on the following matters:

Article 1 of the Convention. The Committee invites the Government to include in its next report up-to-date disaggregated statistics relating to the communities within the national population which are covered by the Convention.

Northern Transversal Strip project. Other territorial development projects. The Committee previously noted the comments made by the 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, El Quiché and Huehuetenango. With regard to the infrastructure projects, the Committee requests the Government to include information in its next report enabling a detailed examination of the manner in which it has been ensured that indigenous peoples have been consulted on each occasion that legislative or administrative measures, which may affect them directly, have been under consideration (Article 6).

Part II. Land. The Committee invites the Government to indicate the impact that rural development and agrarian policy measures have had on ensuring recognition for indigenous peoples’ rights of ownership and possession over the lands that they traditionally occupy (Article 14). In this regard, the Committee reiterates its request to the Government to provide information on the application in practice of Decree No. 41-2005 and its regulations of 2009 concerning communal lands. The Committee also reiterates its request to the Government to provide up-to-date information on any developments in the land disputes at the estates referred to in its observations of 2011 and 2012.

Mining operations at the Marlin mine in San Miguel Ixtahuacán (department of San Marcos). With reference to its previous comments, the Committee requests the Government to provide up-to-date information on the consultations and participation in benefits deriving from the exploitation of resources at the Marlin mine (Article 15).

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

The Committee recalls that the report of the tripartite committee adopted by the Governing Body in June 2007 (GB.299/6/1) referred to the lack of prior consultation with regard to the granting of the licence in December 2004 for the exploratory mining of nickel and other minerals in the territory of the Maya Q’eqchi indigenous people in the municipality of El Estor (department of Izabal). The Committee reiterates its concern at the fact that the Government has not provided its comments on the application of the Convention with regard to the said mining operations and in relation to the aforementioned indigenous community. The Committee urges the Government once again to provide detailed information on the action taken further to the recommendations of the tripartite committee.

Part III. Recruitment and conditions of employment. The Committee requests the Government to provide information on the measures taken to ensure that indigenous workers, including seasonal, casual and migrant workers employed in agriculture, are not subjected to exploitative or abusive recruitment or conditions of work. The Committee requests the Government to provide information on the measures taken by the public authorities, particularly the labour inspectorate, to ensure the effective protection of the labour rights of indigenous peoples (Article 20).

Part V. Social security and health. The Committee recalls that the United Nations Committee on the Elimination of Racial Discrimination (CERD) 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, 16 March 2010, paragraph 13). The Committee requests the Government to take the necessary measures without delay to ensure that the health and maternity programmes of the Guatemalan Social Security Institute 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 provide detailed information in this regard.

Parts I and VIII. General policy. Administration. Articles 2 and 33. Coordinated and systematic action. The Committee previously noted the establishment of 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 Coordinating Committee 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. The Committee 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 application of the Convention.

[The Government is asked to reply in detail to the present comments in 2014.]

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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.

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Article 1 of the Convention. The Committee notes the information supplied by the Government concerning the social context in Guatemala and the indigenous population. The Committee requests the Government to provide information on the compilation of up-to-date statistical data disaggregated by ethnic group and sex for the persons covered by the Convention.

Articles 2, 6, 7 and 33. Noting that the Government has not sent any comments on this matter, the Committee requests the Government to clarify whether the Indigenous Advisory Council for the Offices of the President and Vice-President of the Republic is still active and indicate the manner in which indigenous representation is ensured in the Council. The Committee also requests the Government to provide information on the implementation of the agreements achieved in the context of the round tables for dialogue involving indigenous peoples.

Article 3. Discrimination. The Committee notes the training, awareness-raising and dissemination activities carried out by various state entities. The Committee requests the Government to continue to supply information on such activities and measures and in particular on their impact in practice. The Committee also requests the Government to state whether any complaints of discrimination against indigenous peoples have been made and which entities examine such complaints, and to indicate the result of legal proceedings instituted in this respect.

Article 4. Undocumented indigenous persons. The Committee asks the Government whether there are any surveys or estimates indicating the number of indigenous persons who are still undocumented and the measures planned for resolving this issue.

Lands. Agrarian policy. The Committee requests the Government to supply information on the following points:

• (i) the manner in which the indigenous lands referred to in section 45 of Act No. 24-99 relating to the land fund (FONTIERRA) are determined so as to ensure that indigenous lands are excluded from its scope of application; and
• (ii) the manner in which FONTIERRA applies Article 14(1) and (2) of the Convention in certain cases involving the regularization of land tenure.

Disputes. The Committee refers to its previous comments and to the comments made in this year’s observation concerning protection of the land rights of indigenous peoples.

Article 20. Recruitment and employment conditions. In its previous observation, the Committee referred to the situation of certain workers on estates (fincas) who were not being paid for the work they had done. The Committee requests the Government to provide information on the measures taken to ensure that indigenous workers, including seasonal, temporary and migrant workers employed in agriculture, are not subject to recruitment and conditions of work that are exploitative and abusive. The Committee requests the Government to provide information on the measures taken by the public authorities, particularly the labour inspectorate, to ensure the effective protection of the labour rights of indigenous peoples.

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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.

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The Committee recalls that in its previous comments it did not take into consideration the Government’s report, as it was received late, and that it is therefore examining it in the present direct request, together with the most recent report.

Article 1 of the Convention. The Committee notes that, according to the Government, harmonized criteria for statistical data were in the process of being established and a policy was being implemented to present statistics disaggregated by ethnic group and gender throughout the entire public administration. The Government considers that currently the proportion of the population covered by the Convention is about 42 per cent, which corresponds to the percentage of the population that identified itself as being indigenous in the 2002 census. The Committee requests the Government to continue to provide information on the development of criteria for identifying statistical data disaggregated by ethnic group and gender for the peoples covered by the Convention, and once again asks it whether the Convention covers non-Garífuna peoples of African extraction, with an indication of how their representation in public institutions is secured.

Articles 2, 6, 7 and 33. The Committee notes that the Advisory Council on Indigenous Peoples and Plurality (CAPIP) of the Offices of the President and Vice-President of the Republic referred to as the Indigenous Advisory Council (CAI) in the previous report, counsels and advises on public policy; that the objective of the Committee for the Inclusion of Indigenous Peoples, attached to the executive, was to include 300 representatives of indigenous peoples, but that this had been impeded by budgetary constraints, the result being the inclusion of 51 indigenous representatives in decision-making posts and 150 in posts of lesser responsibility. It notes that, according to the report, in the context of round tables for dialogue with indigenous peoples, political agreements were adopted, applying legislative provisions, to mitigate the impact of racism and discrimination, ensure the participation of indigenous peoples and respect for their rights, and promote sustained economic development and production. The Committee notes that these agreements could constitute a step forward towards participatory development, in the spirit of Article 7 of the Convention by virtue of which the indigenous peoples concerned have the right to decide their own development priorities. For this to occur, it is essential for indigenous peoples to be able to choose their representatives without any interference whatsoever and particularly that they participate through their own representative institutions as set out in Article 6. The Committee requests the Government to indicate the manner in which indigenous representation is secured in the CAPIP, the Committee for Inclusion and the round tables for dialogue, indicating particularly the manner in which representatives of indigenous peoples are designated. Please also provide information on the implementation and results achieved of the agreements adopted through the round tables.

Article 3. Non-discrimination. The Committee notes the training, awareness-raising and dissemination activities carried out by Presidential Coordinating Committee on Human Rights Policies of the Executive (COPREDEH) and Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), in particular the strategies to attract private initiatives being implemented by CODISRA. The Committee hopes that the Government will continue to provide information on such activities and strategies and on their impact in practice.

Article 4. Documentation of indigenous persons. The Committee notes that a documentation campaign for indigenous persons has been carried out, but that the Government did not have any statistics on the beneficiaries. The Committee asks the Government whether it has studies on or estimates of the number of indigenous persons still undocumented and on the measures being envisaged to resolve this matter.

Article 8. Administration of justice. The Committee notes that a theoretical framework for focusing on culturally relevant cases was being formulated for the Public Criminal Defence Institute, 120 indigenous university students were being trained to increase the number of indigenous lawyers, 100 indigenous public defenders were being trained as well as other judicial workers, and that training and awareness raising on inter-culturality was being provided to 324 Public Criminal Defence Institute employees. The Committee also took note of a number of criminal cases in which, after it had been ascertained that the accused were indigenous and indigenous law had been requested, invoking the Convention, no sanctions whatsoever had been imposed, as the compensation and reparation provided by the accused and their relatives in accordance with local customs had been considered sufficient. The Committee notes that in these cases, customs and customary law had been respected. The Committee requests the Government to continue to provide information on this matter.

Legislation respecting lands and consultation

Land Registry Information Act (RIC) and Bills. The Committee notes that, according to the report, it is not yet possible to indentify the specific beneficiary communities of the Act since the results up to now are of a general nature. The Land Information Register (RIC) has not yet finalized the registry of lands in any of the areas in which it has undertaken projects. The Government indicates that progress will be made in applying the Land Registry Information Act after adoption of the Regulation on Communal Lands, which were the subject of consultations through workshops. The Government also refers to the formulation of the Land Tenure Act and indicates that this matter is being coordinated by the Secretariat on Agrarian Affairs, which has formed a committee to work on this project. The Government indicates that this committee has produced an initial draft which will be presented and discussed with various sectors of Guatemalan society. The Committee emphasizes that consultations, pursuant to the Convention, need to be carried out according to appropriate procedures and in particular through the representative institutions of indigenous peoples, undertaken in good faith and with the objective of reaching agreement or achieving consensus, in accordance with Article 6 of the Convention. Procedures considered to be appropriate are those that generate conditions conducive to reaching an agreement or achieving consensus on the measures being proposed. There is no unique procedural model, though the circumstances of the indigenous peoples concerned as well as the nature of the measures subject to consultation need to be taken into account. With regard to the procedure to be adopted, the views of the various groups that will participate in the consultation should be taken into account so as to ensure that the procedure used is considered appropriate by all parties. The Committee asks the Government to provide information on procedures established and consultations undertaken with indigenous peoples with regard to the draft Regulation on Communal Lands and the draft Land Tenure Act. The Committee also requests the Government to provide information on the status of the land registry process, and of the indigenous communities that have benefited from it, including those who occupy or otherwise use the land.

Agrarian policy. The Committee notes that the entity that coordinates national agrarian policy is the Secretariat on Agrarian Affairs. The Committee requests the Government to provide information on the following points:

(i)    the manner in which it is determined which indigenous lands are referred to in section 45 of Act No. 24-99 respecting the land fund FONTIERRA so as to ensure that lands of indigenous communities are excluded from its scope of application; and

(ii)   the manner in which FONTIERRA applies Articles 14(1) and (2) of the Convention in certain cases involving the regularization of land tenure.

Conflicts. The Committee also notes the information provided by the Government on the number of conflicts linked with disputes over land. Moreover, in its 2007 observation, the Committee noted that in June 2007, the Governing Body had approved the report on the representation presented under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC), alleging the non-observance of certain provisions of the Convention (GB.299/6/1), in which a critical aspect mentioned by the parties was the legal situation regarding lands. The Committee notes the persistence of conflicts regarding land rights and emphasizes the importance of resolving them in conformity with Article 14 of the Convention. It recalls that, in paragraphs 46 and 60 of its report, the Governing Body requested the Government to speed up the process of the regularization of title to the lands of indigenous communities in accordance with Article 14 of the Convention and in the meantime to adopt transitional measures to protect the land rights of the peoples concerned in consultation with indigenous peoples. The Committee therefore urges the Government to adopt all the measures necessary to apply the recommendations of the Governing Body, in particular, the Committee requests the Government to provide detailed information regarding the measures taken or envisaged, in consultation with indigenous peoples, to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention and to protect these rights while the process of the regularization of title to lands is being completed.

Article 20. Recruitment and employment conditions. The Committee notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50) and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64). The Committee has examined the reports under Conventions Nos 50 and 64 in the context of the present Convention, thereby fulfilling its obligation to analyse the Government’s implementation of the above instruments. Conventions Nos 50 and 64 had been adopted in connection with indigenous workers in territories that were dependent and the Governing Body had decided that these instruments were out of date. The Committee, as had been suggested previously by the Governing Body, requests the Government to consider denouncing these Conventions when the opportunity presents itself. The Committee requests the Government to continue to provide information in its next report on the measures adopted to ensure that indigenous workers, including seasonal, temporary and migrant workers employed in agriculture, are not subject to hiring and working conditions that are exploitative and abusive. Please provide full particulars on the measures taken to ensure the effective controls by the employment agencies and the labour inspectorate.

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The Committee notes the communication from the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), of which the following are members: the General Confederation of Workers of Guatemala (CGTG); the Single Trade Union Confederation of Guatemala (CUSG); the National Trade Union and People’s Coordinating Body (CNSP); the Committee of Rural Workers of the Altiplano (CCDA); the National Indigenous, Rural Workers and People’s Council (CNAICP); the National Front for the Defence of Public Services and Natural Resources (FNL); and the Trade Union Confederation of Guatemala (UNSITRAGUA). The communication was dated 28 August 2009, and was forwarded to the Government on 19 October 2009. The Committee will examine the communication in 2010, together with any observations of the Government in this regard. The Committee also recalls that in its previous observation it did not examine the Government’s report of 2008, as it was received late, and will therefore examine it in the present observation, together with the report of 2009.

Sacatepequez and cement company. State of emergency. In its previous observation, the Committee noted the communication from the MSICG, received on 31 August 2008. The communication referred to the award of a permit in the Sacatepequez case and the implementation of a mining project by force, despite the fact that the proposal for exploitation by mining was totally rejected by the community, with 8,936 votes against and four in favour. It added that a state of emergency was declared with a view to imposing the establishment of the cement company without consultation. The Committee notes the information provided by the Government concerning Government Decree No. 3-2008 introducing the state of prevention. However, it notes that no information has been provided on the special measures adopted, as requested by the Committee, to safeguard the persons, institutions, property, labour, cultures and environment of the peoples concerned, in accordance with Article 4 of the Convention.

With regard to the application of Articles 6, 7 and 15 of the Convention in the present case, the Committee notes the indication by the Ministry of Energy and Mining that it is impossible for it to hold consultations in accordance with the Convention due to the absence of specific regulations on this subject. It adds that, in view of the absence of such provisions, the Ministry has to comply with the Mining Act that is currently in force, which establishes a series of requirements that have to be met by the party concerned to obtain a mining permit and, once they have been fulfilled, requires the administration to grant the permit without giving it any option to do otherwise. It further notes that the Ministry urged those interested in obtaining permits to approach the indigenous communities and inform them fully concerning their projects. The Committee notes that, according to the Government’s report, a forum for dialogue was established for the Government and the representatives of the communities concerned with a view to assessing the situation.

The Committee wishes to draw the Government’s attention to the fact that the right of indigenous peoples to be consulted on each occasion that measures are envisaged which are likely to affect them directly is derived directly from the Convention, irrespective of whether or not consideration has been given to the adoption of specific national legislation. It also wishes to note that the obligation to ensure that indigenous peoples are consulted in accordance with the Convention rests with the Government, and not with private individuals or enterprises. Furthermore, the provisions of the Convention relating to consultations have to be read in conjunction with Article 7, which sets out 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 development which may affect them directly. In this respect, it recalls that in its 2008 general observation on the Convention, the Committee emphasized that “[d]isregard for such consultation and participation has serious repercussions for the implementation and success of specific development programmes and projects, as they are unlikely to reflect the aspirations and needs of indigenous and tribal peoples”. It also emphasizes that Article 7(3) of Convention provides that governments shall ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities, and that Article 15(2) establishes that consultations have to be held with a view to ascertaining whether and to what degree the interests of indigenous peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. Furthermore, in accordance with Article 7(4), governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.

The Committee therefore urges the Government to:

(i)    bring existing legislation, such as the Mining Act, into conformity with Articles 6, 7 and 15 of the Convention;

(ii)   adopt without delay all the necessary measures to hold constructive dialogue in good faith between all the parties concerned in accordance with the requirements set out in Article 6 of the Convention to seek appropriate solutions to the situation in a climate of mutual trust and respect, taking into account the Government’s obligation to safeguard the social, cultural and economic integrity of indigenous peoples in accordance with the spirit of the Convention; and

(iii) immediately suspend the alleged activities while such dialogue is being held and assess, in cooperation with the peoples concerned, the social, spiritual, cultural and environmental impact of the envisaged activities and the extent to which the interests of indigenous peoples would be prejudiced, in accordance with Articles 7 and 15 of the Convention.

Please provide detailed information on the measures adopted regarding these matters.

Articles 14 and 20. Land and wages. In its previous observation, the Committee noted that the communication referred to above indicated that the rights to lands recognized in the Convention were being violated and mentioned the following cases: Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim. It added that indigenous peoples are not recognized as the traditional occupants and that, having been employed on their own lands, their wages were not paid and they were violently removed and their ranches burned. With reference to the June 2007 report of the Governing Body (GB.299/6/1), the Committee recalled 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 and to provide detailed information on the wages due.

The Committee notes the Government’s indication that a National Policy for Integral Rural Development has been formulated which, according to the report, is intended, among other objectives, to “reform and democratize the system for the use, holding and ownership of lands”, “promote laws for the recognition of the rights of possession, ownership and allocation of lands to persons belonging to rural indigenous peoples” and “promote decent work in rural areas in general”. However, the Committee notes that information is not provided on the cases referred to previously, in which the allegations concern violations of the rights of indigenous peoples to their lands, nor is information provided on the transitional measures requested by the Committee. The Committee once again requests the Government to provide information on the transitional measures adopted to protect the land rights of indigenous peoples until progress is made in the regularization of lands. It requests the Government to provide information on the situation with regard to the Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim and to indicate the measures adopted to ensure that indigenous peoples enjoy the full benefit of the rights set out in the labour legislation, in accordance with Article 20 of the Convention. It invites the Government to provide a copy of the National Policy for Integral Rural Development and to supply information on its implementation in relation to the peoples covered by the Convention. It also refers to the additional comments on this subject contained in the direct request on the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes that, according to the Government, multi- and intercultural public policies, formulated by presidential committees with representation of the Maya, Garífuna and Xinca peoples, have been implemented. The Government cites as an example its public policy on living in harmony and eliminating racism and racial discrimination. The Government also refers to a Bill on sacred sites and a preliminary draft of legislation to regularize land occupancy. The Government states that progress is being made, but recognizes that there is still some way to go towards effective implementation, which involves a gradual process of establishing the appropriate bodies and mechanisms. In its previous comments, the Committee noted the creation of the State Inter-Institutional Coordination Unit on Indigenous Issues (CIIE), comprising 29 state institutions involved in indigenous issues, and the establishment in 2005 of the Indigenous Advisory Council (CAI). It also noted that, according to comments by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Confederation of Guatemalan Workers (CGTG), there was still only token participation by indigenous peoples.

The Committee recalls that in the report of June 2007 on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1), the Governing Body called on the Government to develop coordinated and systematic action, within the meaning of Articles 2 and 33 of the Convention, with the participation of indigenous peoples, when applying its provisions. The Committee also draws the Government’s attention to its 2008 general observation, in which it notes that Articles 2 and 33 provide that governments are under an obligation to develop, with the participation of indigenous and tribal peoples, coordinated and systematic action to protect the rights and to guarantee the integrity of these peoples. In this regard, the Convention calls for the establishment of agencies and other appropriate mechanisms to administer programmes, in cooperation with indigenous peoples, including all stages from the planning to the evaluation of the measures proposed in the Convention. While the Committee understands that ensuring full application of the Convention is a continuing process, it notes that the information provided does not appear to suggest that the Government’s action is either coordinated or systematic, nor does it show the existence of agencies or mechanisms that would allow indigenous peoples to participate effectively in the development and implementation of such action. The Committee therefore urges the Government, in cooperation with the peoples concerned, to take the measures and establish the mechanisms provided for in Articles 2 and 33, which should allow for coordinated and systematic action to implement the Convention, and to provide detailed information in this respect.

Legislation on consultation and participation. For several years, the Committee has been following the issue of the establishment of institutional mechanisms for consultation and participation as envisaged by the Convention. The Committee notes that in its most recent report, the Government refers to a draft General Act on the rights of indigenous peoples of Guatemala (registered as No. 40-47), which was tabled in the Plenary of the Congress on 11 August 2009 and is awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on Indigenous Peoples. Reference is also made to the Bill on the consultation of indigenous peoples (registered as No. 36-84), which was tabled in the Plenary of the Congress on 25 July 2007 and is still awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on the Economy and External Trade. The Committee also understands that there is another Bill on consultation, under No. 40-51, which received a favourable opinion in the Committee on Indigenous Peoples on 27 September 2009. It further notes that the Ministry of Energy and Mining refers to a third legislative initiative on the subject, under No. 34-13. The Committee also notes that, in accordance with section 26 of the Act respecting urban and rural development councils (Decree No. 11-2002), “until the Act is issued governing the consultation of indigenous peoples, the consultations with the Maya, Xinca and Garífuna peoples on development measures promoted by the executive authorities and which directly affect these peoples may be held through their representatives in the development councils”.

In its previous comments, the Committee noted that, according to the Government, the High-level Committee of the Ministry of Energy and Mines submitted a proposal to amend the Mining Act to the President of the Republic, focusing on “information, participation and consultation of the peoples concerned”. The Committee notes that, according to the Government’s report, this draft has not been transmitted to the Legislative Department, which is consequently unaware of its contents.

The Committee recalls that it has been following these matters since the ratification of the Convention; that the lack of appropriate consultation mechanisms was the subject of a report and recommendations by the Governing Body in response to a representation; that on various occasions it has examined comments by trade unions on serious situations relating to the lack of consultation and the exploitation of natural resources; and that in 2005 it noted the fact that the Office of the Human Rights Ombudsperson had expressed concern about the award by the Government, without prior consultation, of 395 exploration and exploitation permits. The Committee also refers to its 2008 general observation on the application of the Convention, in which it considered it important that governments, with the participation of indigenous and tribal peoples, as a matter of priority, establish appropriate consultation mechanisms with the representative institutions of those peoples. The Committee expresses its concern at the lack of measures to this end. In its previous comments, the Committee noted that the Bill on consultation would be finalized shortly and that a High-level Committee was working on amendments for the inclusion of prior consultation in the mining legislation. However, regrettably no progress appears to have been made concerning these initiatives. Moreover, legislative initiatives appear to have multiplied in a seemingly uncoordinated manner. While the Committee understands that measures to ensure consultation and participation take time, it emphasizes that the steps required in the short, medium and long term need to be clearly established so that the results required under the Convention can be achieved. The Committee therefore urges the Government to take all the necessary measures to ensure the establishment of appropriate machinery for consultation and participation as provided for in the Convention, taking into consideration its general observation of 2008, and to provide detailed information in this regard. The Committee reminds the Government that it can request technical assistance from the Office and asks it to provide detailed information on the measures envisaged with a view to adopting and implementing legislation on consultation and participation. Please provide information on the effect given in practice to section 26 of the Act on urban and rural development councils.

Follow-up of a communication from the Trade Union Confederation of Guatemala (UNSITRAGUA) alleging lack of consultation and participation in relation to the granting of a permit to Montana-Glamis Gold. For several years, the Committee has been following up comments from UNSITRAGUA relating to the permit for mining exploration and exploitation granted to Montana-Glamis in the departments of San Marcos and Izábal, which would extend over an area covering lakes Atitlán and Izábal. The Committee reiterated its invitation to the Government to continue making efforts to hold consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15(2) of the Convention. The Committee repeatedly invited the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7(3) of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Furthermore, the Committee invited the Government to redouble its efforts to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and has requested it to provide detailed information in this respect.

The Committee notes that the Government reiterates that no permit of any kind has been granted for Lake Izábal and that discharges of any kind into any body of water have been prohibited. The Committee notes with regret that the Government has not provided new information in this regard. The Committee recalls that, in its previous comments, it observed that the Government did not deny the alleged lack of consultation, but stated that the enterprise had undertaken an environmental impact study that was approved by the relevant government office. Furthermore, the Committee noted the concerns expressed by the Office of the Human Rights Ombudsperson in its May 2005 report on mining activity. The above Office expressly referred to the project to which the UNSITRAGUA objected and expressed its concern regarding the risks of open-cast mining, and particularly the procedure used in this case, i.e. cyanide leaching. According to the above Office, this type of procedure has had damaging effects on the environment and health in other countries and has been prohibited in other regions of the world, and its potential impact would affect: (1) water sources; (2) air quality, through the release of particles; and (3) the useful and fertile life of the soil, permeated by cyanide solutions. The Committee drew the Government’s attention to the fact that these risks should be subject to prior consultation under Article 15(2) of the Convention, as well as the studies provided for in Article 7(3) of the Convention. Consequently, the Committee, noting that the Government’s report reiterates the information provided previously, expresses its concern regarding the lack of progress in the case under examination and urges the Government to suspend the exploitation in question until the studies provided for in Article 7(3) of the Convention and the prior consultation provided for in Article 15(2) of the Convention can be carried out, and to provide detailed information in this regard. Furthermore, the Committee asks the Government to take the measures necessary to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and requests it to provide detailed information in this respect.

Follow-up of the 2007 recommendations of the Governing Body. The Committee notes with regret to note that the Government’s report does not contain information on the matters raised in its 2007 observation as a follow-up to the recommendations adopted by the Governing Body in its report of June 2007. The report concerned a representation alleging a lack of prior consultation of the peoples concerned regarding the award of a permit for mining exploration for nickel and other minerals, number LEXR-902 of 13 December 2004, to the Izábal Exploration and Mining Corporation SA (EXMIBAL) to begin exploratory mining in the territory of the indigenous Maya Q’eqchi people (GB.299/6/1). The Committee urges the Government to provide detailed information in its next report on the action taken to give effect to the 2007 recommendations of the Governing Body (GB.299/6/1).

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

[The Government is asked to reply in detail to the present comments in 2010.]

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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.]

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1. The Committee notes that, in June 2007, the Governing Body adopted the report on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1). The representation involved allegations of a lack of prior consultation of the people concerned regarding the award of a licence (No. LEXR-902 of 13 December 2004) to the Izábal Exploration and Mining Corporation (EXMIBAL) to begin exploratory mining for nickel and other minerals in the territory of the indigenous Maya Q’eqchi people. The other crucial aspect referred to by the parties was the legal situation with regard to the lands. The FTCC claimed that it was not coherent that, on the one hand, the Government sells the lands to the communities and, on the other hand, cedes them under licence to mining companies. The Government stated that, if the communities do not own the land, there is no obligation to engage in consultations, and submitted that it was necessary for the communities or their members to hold titles of ownership to be eligible for consultations.

2. The Committee notes the recommendations made by the Governing Body, calling on the Government to take measures and supply information for examination by the Committee of Experts on the following matters:

(a)    to give full effect to Article 15 of the Convention and to engage in prior consultation in cases of exploration or exploitation of natural resources which may prejudice indigenous and tribal communities, and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans;

(b)    to endeavour to resolve any consequences of the granting of the exploration licence including by assessing, in consultation with the communities concerned, whether and to what degree their interests have been prejudiced, and where such prejudice is found, to ensure that fair compensation is provided, in accordance with Article 15, paragraph 2, of the Convention. It hopes that, in seeking solutions to the problems affecting communities which occupy or otherwise use lands for which the licence covered by the representation has been granted, the Government should go through representative institutions or organizations so as to be able to establish and maintain a constructive dialogue under the terms of Article 6 so that the parties concerned can seek solutions to the situation faced by these communities, taking into account for this purpose paragraph 53 above;

(c)    to initiate a process of consultation before granting any exploration and exploitation licences covering the lands referred to in the representation and to maintain consultation and participation procedures with all the communities concerned which occupy or otherwise use these lands, whether or not they hold title of ownership, taking into account for this purpose paragraph 53 above;

(d)    in consultation with indigenous peoples, to take the necessary measures to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention;

(e)    in consultation with indigenous peoples, to adopt transitional measures to protect these rights while the process of the regularization of title to lands is being completed;

(f)    to develop coordinated and systematic action, within the meaning of Articles 2 and 33, with the participation of indigenous peoples, when applying the provisions of the Convention;

(g)    to make progress in the formulation and adoption of the Indigenous Peoples Consultation Bill and the appropriate regulation of 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; 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 processes of inclusive development.

3. The Governing Body also invited “the Office to pursue its technical assistance and cooperation with the Government so as to facilitate the establishment of the process of consultation envisaged in points (a), (b) and (c) above and to assist the Government in the formulation of the legislation referred to in point (g) above”.

4. The Committee requests the Government to supply detailed information in its next report on the action taken further to the abovementioned recommendations, together with its reply to the comments made by the Committee in 2006.

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1. Article 1 of the Convention. The Committee notes that according to the Government, no state bodies or indigenous organizations have statistical information indicating the population covered by the Convention, as no distinction is made as to ethnic group in implementing public policies. The Government also indicates that it has not reached consensus with any indigenous organizations or institutions on the criteria for determining membership of an ethnic group. The Committee points out that since the Convention provides for the implementation of a series of public policies targeting indigenous peoples exclusively, it is important to set criteria for determining its coverage. The Committee hopes that the Government will do its utmost, in consultation with the peoples concerned, to establish criteria for identifying peoples liable to be covered by the Convention, bearing in mind that paragraph 2 of this Article establishes that self-identification must be regarded as a fundamental criterion. Please report to the Committee on progress made in this regard, and specify whether the Convention applies to non-Garífuna peoples of African extraction indicating, if appropriate, how the latter’s representation in Government institutions is secured.

2. Articles 2 and 33. The Committee notes that the Indigenous Advisory Council (CAI) has had great difficulty in starting up because the Government decision (No. 96-2005) which established it made no provision for funding. However, it has created a political environment allowing the presidency to become acquainted with the most relevant indigenous issues, due in particular to government mobile units, at which the indigenous organizations can hand in their requests, proposals and recommendations. The Committee notes that in 2006 a Committee for the Inclusion of Indigenous Peoples, attached to the executive, was set up for the purpose of negotiating/implementing 300 decision-making posts to be filled by representatives of indigenous peoples, and that the President proposed launching a “National Agreement for implementation of social expenditure for poverty reduction”, the aim being to reach short- and medium-term operational agreements on indigenous peoples and inclusion among other subjects, a “steering committee on indigenous peoples and inclusion” having being officially set up to implement the agreements. The Committee points out that according to Article 6(1)(c), in applying the Convention, governments must establish means for the full development of indigenous peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. It accordingly hopes that the Government will take the necessary steps to secure funding to overcome the abovementioned difficulties. It also requests the Government to report on the powers, operation, membership and representation machinery of the CAI, and hopes that the Government will continue to provide information on its activities and their effect in practice, and on progress towards achieving the objectives of the abovementioned committee and steering committee.

3. Article 3. Non-discrimination. The Committee notes the training, information and advocacy measures undertaken by the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), particularly the latter’s strategies for the involvement of private initiative. The Committee hopes that the Government will continue to keep it informed in this regard, indicating the effect of the above measures in practice.

4. Article 4. Further to its previous comments concerning the issuing of documents for undocumented indigenous people, the Committee notes with interest that on 4 April 2006 the Congress of the Republic approved Decree No. 09-2006, the Temporary Act on Personal Documents. Please provide information on the latter’s effect in practice indicating, for example, the number of indigenous people who have obtained documents since its entry into force.

5. Administration of Justice. The Committee notes with interest the various measures adopted to apply the relevant provisions of the Convention. It notes in particular that the Strategic Plan of the Institute of the Ombudsperson for Criminal Affairs for the period 2005-09 provides for an “ethnic or intercultural focus” in all aspects of the provision of “a single technical protection service”. It also notes the efforts made to institutionalize machinery for coordinating official state law and the law practised by the traditional authorities of indigenous peoples, and to support the provision of cultural expert opinions in cases where this is warranted. The Committee would be grateful if the Government would continue to provide full information on the progress made and difficulties encountered in applying the relevant provisions of the Convention, particularly in relation to the issues mentioned above. Please also provide, where possible, samples of court decisions reflecting such progress.

Lands

6. Act on land registry information. The Committee notes that according to the Government, “it can be said” that the indigenous peoples were consulted on the Act, since the Joint Committee on the Land-Related Rights of Indigenous Peoples (COPART) participated actively in the drafting and debate stage, and while the Governing Board of the Land Information Register (RIC) has no indigenous representatives, it is in continuous contact with indigenous and peasant organizations in connection with applications that they file and through land registration activities. The Committee also notes that the provisions of the Act, particularly section 73, which establishes that Title VII “Regularization under the land registration process” will apply until the entry into force of the “Land Tenure Act” and that for this purpose, the executive body shall submit the corresponding initiatives to the Congress of the Republic at the earliest possible date. It also notes that the temporary provisions of the abovementioned Act establish machinery for determining and registering communal lands (section 65) and indigenous ceremonial sites (section 66) and that it defines communal lands as lands under the ownership, possession or tenure of indigenous or peasant communities as collective bodies with or without legal personality (section 23(y)) including those registered in the name of the State and municipalities. The Committee reminds the Government that the prior consultations required by Article 6 of the Convention, must be carried out by means of appropriate procedures and in particular through the peoples’ representative institutions whenever consideration is being given to legislative or administrative measures which may affect the peoples directly. It accordingly asks the Government to provide information on the manner in which the abovementioned consultations were carried out. Please also provide information on progress in applying the Act, citing specific cases of indigenous communities that have benefited from it. The Committee would also be grateful for information on the measures adopted or envisaged to regularize the situation of indigenous villagers or communities who occupy or use in any other manner lands located on State reservations, protected areas or private property, and on progress made in the preparation of the Land Tenure Act, in consultation with the indigenous peoples.

7. Agrarian policy. The Committee notes from the Government’s information that there is no body responsible for coordinating national agrarian policy and that the Land Fund (FONTIERRA) is governed by Internal Act No. 24‑99, section 45 of which excludes the lands of indigenous communities from the scope of the Act. However, according to a report by FONTIERRA, attached to the Government’s report, FONTIERRA applies Article 14, paragraphs 1 and 2, of the Convention in keeping with the Regulations on Regularization of the Tenure of Lands Delivered by the State, Government Decision No. 386-2001, in certain cases involving the legalization of land tenure (section 8). Please explain the position in law of indigenous community lands legalized under the above mechanism, specifying the conditions under which the awards referred to in the Regulations are made. The Committee notes the general results obtained through the application of the above Regulations in terms of the number of families and communities that have benefited, and asks the Government to give specific information on the different indigenous communities that have benefited from these measures..

8. Disputes. In its previous comments the Committee noted that the Presidential Dispute Settlement Unit (UPRECO) had in recent years intervened in disputes over lands and water. It also noted that the Secretariat for Agrarian Affairs of the Presidency of the Republic (CONTIERRA) was monitoring 2,000 land disputes, which were classified in four categories: occupation, disputes of law, extraterritorial boundary disputes and land regularization cases. The Committee would be grateful if the Government would state whether the abovementioned disputes and cases include any claims by indigenous communities and, if so, indicate the manner in which they are processed.

9. Article 20. Recruitment and conditions of employment. The Committee notes the statistical data of Guatemalan temporary migrant workers. It notes that according to the Government, these workers cannot be disaggregated by ethnic group, but that most of them belong to indigenous peoples. The Government also indicates that there are no illegal Guatemalan seasonal workers. In its previous comments, the Committee noted the measures adopted by the Department of Labour Migration of the Ministry of Labour to ensure that the provisions of the Convention are applied to seasonal indigenous workers in the south of Mexico who are hired unlawfully. The Committee would be grateful if the Government would provide information on developments in this situation and on the main problems in applying this Article to indigenous workers in Guatemala.

10. Articles 24 and 25 (social security and health). The Committee notes the information supplied by the Government concerning points 12 and 13 of the previous direct request, and will continue to monitor compliance with these provisions of the Convention through the information supplied by the Government in its future reports. In particular, it requests the Government to provide the results of the measures taken to target the problem of child malnutrition.

11. Articles 26 to 31 (education and the media). The Committee trusts that the Government will provide information on the application of these Articles in its next report.

12. Part VIII of the report form. The Committee reminds the Government once again that this part of the report form approved by the Governing Body states that “although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application”. The Committee would be grateful if the Government would state whether it plans to carry out consultations of this kind.

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1. In its observation of 2005, the Committee referred to a report of the Council of Mayan Organizations of Guatemala (COMG) sent by the General Central Union of Guatemalan Workers (CGTG) concerning consultation and participation, and to a communication from the Union of Guatemalan Workers (UNSITRAGUA) alleging that the peoples concerned had not been consulted regarding the granting of a licence to Montana-Glamis Gold. The Committee examined the above communications together with the Government’s reply and requested information to be sent in 2006.

2. Consultation and participation. In its previous observation, the Committee noted that according to the COMG, there was still only token participation of indigenous peoples, there were no specific institutional mechanisms for carrying out consultations, and a large number of licences for exploration and exploitation of mineral resources had been granted without prior consultation with the indigenous peoples. It also noted that according to the Government, in March 2005, the Indigenous Advisory Council (CAI) was set up and that although there was no consultation machinery, an important item on the agenda of the Joint Committee for Reform and Participation is the framing of an “Indigenous Peoples Consultation Bill”. The Committee notes that the report again states that the Bill will shortly become law.

Article 15, paragraph 2. Communication from UNSITRAGUA
alleging that the peoples concerned were not consulted
to ascertain whether and to what extent their interests
would be harmed by the granting of a licence to
Montana-Glamis Gold

3. Background. In 2005, the Committee noted that according to UNSITRAGUA, the Government had granted Montana-Glamis Gold a licence for mining exploration and exploitation in the departments of San Marcos and Izábal in an area containing two of Guatemala’s main lakes – Atitlán and Izábal – where there are eco-tourism resorts. When the company’s cylinder was brought in on 11 January 2005, under the escort of 1,300 members of the police and the army, the local population blocked the road in protest. A villager died as a result of these incidents.

4. It also noted that according to the Government, environmental impact studies had been carried out, that the licence was granted in San Marcos but not in Izábal, and that UNSITRAGUA’s communication gave no explanation of how Lake Atitlán and Lake Izábal were damaged. The Government recognized that there is no institutional machinery for consultation of indigenous peoples but indicated that approaches had been made to the indigenous population, that a high-level committee had been set up whose members included representatives of the Executive and the Catholic Church, and that an understanding had been signed seeking amendment of the Mining Act with regard to royalties, environmental health and consultation with indigenous peoples.

5. The Committee notes from the Government’s report that it is the understanding of the Ministry of Energy and Mines that the consultations provided for in Article 15 of the Convention apply only where the prospecting and exploitation is located within the lands of the indigenous peoples. The Committee reminds the Government that this Article provides for consultations when the natural resources are in the indigenous lands defined in Article 13, paragraph 2, which states that “the use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”. The Committee also points out that the Convention covers not only areas occupied by indigenous peoples but also “the process of development as it effects their lives … and the lands they occupy or otherwise use” (Article 7, paragraph 1). Accordingly, a project for exploration or exploitation in the immediate vicinity of lands occupied or otherwise used by indigenous peoples, or which directly affects the interests of such peoples, would fall within the scope of the Convention.

6. The Committee notes the Government’s statement that until the Bill on the participation and consultation of indigenous peoples is adopted, the transitional consultation machinery will apply which is regulated by the ordinary law including section 76 of the Urban Development Councils Act, Decree No. 11‑2001, which provides that consultation of the Maya, Xinca and Garífuna peoples may be carried out through their representatives in these councils. The Committee notes the Government’s explanation that in practice, meetings have been held with the development councils at which detailed explanations have been given regarding mining applications and the reasons for considering that the activities involved will not affect the interests of the peoples represented by the councils, and that any damage sustained by the communities is covered by the surety that the enterprises are required to deposit.

7. While noting the Government’s efforts to establish machinery for the consultation and participation of peoples who may be affected by mining projects, the Committee again asks the Government to pursue its endeavours to hold consultations with the peoples concerned, taking into account the procedures required by Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as prescribed in Article 15, paragraph 2, of the Convention. The Committee again asks the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis Gold, it will be possible to carry out the studies provided for in Article 7 of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. The Committee also invites the Government to redouble its efforts to shed light on the incidents in which a villager died in the course of a demonstration against the installation of a cylinder for the mine. The Committee would be grateful if in its next report, the Government would provide detailed information on these points.

8. Amendment of the Mining Act. The Committee notes that the High-level Committee of the Ministry of Energy and Mines recently submitted to the President of the Republic a draft amendment to the Mining Act which focuses among other matters on “information, participation and consultation of the peoples concerned”. The Committee trusts that this amendment will give effect in law to the prior consultations required pursuant to Article 15, paragraph 2, of the Convention, and will take into account the above comments on the provisions of Articles 6, 7 and 13. Please keep the Committee informed on progress made in amending the Mining Act.

9. The Committee notes that according to the Government, Guatemala is to have technical assistance from the Office with a view to developing a model for consultation that conforms to the Convention. In view of the abovementioned Indigenous Peoples Consultation Bill and the amendment of the Mining Act to include consultation, the Committee encourages the Government to pursue its efforts to obtain suitable instruments for consultation and participation which will attenuate disputes over natural resources and lay the foundations for inclusive development projects. It requests the Government to report on progress made and expected regarding these important issues. The Committee notes with interest that a seminar on the Convention was held in November 2006 with the assistance of the ILO and hopes that this assistance will continue, and will facilitate the creation of an appropriate basis for the effective application of the Convention.

Articles 2 and 33. Coordinated and systematic action
with the participation of indigenous peoples

10. Finally, the Committee points out that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of indigenous peoples in applying the provisions of the Convention, and that Article 33, paragraph 2, provides for such participation from the conception through to the evaluation stage of the measures provided for in the Convention. Consultation, as envisaged in the Convention, extends beyond consultation on specific cases: it means that application of the provisions of the Convention must be systematic and coordinated and undertaken in cooperation with the indigenous peoples as part of a gradual process in which suitable bodies and machinery are established for the purpose. The Committee notes in this connection that a coordinating body has been set up, the Coordinadora Interinstitucional Indigena del Estado (CIIE), comprising 29 state institutions involved in indigenous issues and that its purpose is to coordinate and advise on public policy relating to indigenous peoples. The Committee urges the Government, in cooperation with the peoples concerned, to move forward with the implementation of these Articles, and asks it to provide information on the measures adopted to this end.

The Committee is also addressing a request directly to the Government on other points.

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1. Article 1 of the Convention. The Committee notes from the Government’s report that according to the census of the Maya and rural population, 39 per cent of the total population identifies itself as Mayan. Please state the total population covered by the Convention in Guatemala, bearing in mind that according to the information supplied by the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA) (Annex 5 of the report), "indigenous people currently account for more than half the total population of Guatemala, i.e. some 6 million inhabitants" and include, according to the Agreement on the Identity and Rights of Indigenous Peoples, Mayas, Garifuna and non-Garifuna peoples of African ascendancy and Xinkas.

2. Articles 2 and 33. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was set up to enable the Government to receive advice from leaders of ethnic groups. Please provide information on the activities carried out by the CAI and their impact during the period covered by the next report. The Committee also notes the information on the activities of CODISRA and the Guatemalan Indigenous Fund (FONDIGUA). The Committee would be grateful if the Government would state whether there is a governing body whose duties include monitoring the general application of the Convention or some mechanism for coordinating the various bodies involved. Please indicate the measures to ensure that programmes are coordinated, with the participation of the indigenous peoples, at all stages, from planning through to evaluation, in accordance with Article 2, paragraph 1, and Article 33, paragraph 2(a) and (b), of the Convention.

3. Article 3. Non-discrimination. The Committee notes the activities of the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and CODISRA’s Strategic Plan for 2005-25. It notes that according to the Plan, "although the indigenous population makes up most of the country, they are not treated favourably by state policy and state action; on the contrary, they are the object of racial discrimination owing to relations which date back to the colonial production system and which have been reproduced ever since in all state institutions". The Committee appreciates the Government’s willingness to recognize the problem, since an objective evaluation will allow suitable polices and programmes to be devised in order to overcome discrimination. It notes in this connection the yearly action plans and the plan for 2005-10 and requests the Government to provide information on the implementation and impact of the plans, particularly Action Plan 1 on public policy monitoring and one of its component projects "Private enterprise in Guatemala enhances its social responsibility for a productive country free of discrimination and racism".

4. Article 4. With reference to its previous comment concerning the issuing of documents for undocumented indigenous people, the Committee notes that consultancy was provided in only four cases but that the Ombudsperson for Indigenous Women (DEMI) showed interest in reviving the temporary law on personal documents. Please continue to provide information on the number of indigenous people issued with personal documents during the period covered by the next report.

5. Article 6. The Committee refers to its observation and notes that the information on the First National Mining Forum does not mention the concluding observations of the 11 promoters or the ten main conclusions referred to by the Government in its report. Please provide information on the content of the reflections and conclusions and on their follow-up. The Committee refers the Government to the comments made in its observation about the Government’s request to the Office for technical assistance to establish a legal framework for consultation, and hopes that with the Office’s technical assistance and in consultation with the indigenous peoples, the Government will make headway in passing legislation that gives effect to this Article of the Convention and will be in a position to provide information in this regard in its next report.

6. Article 7. Participation. The Committee notes all the information sent by the Government and refers to its observation. It notes with interest Ministerial Agreement No. 402-2004 of the Ministry of Environment and Natural Resources setting up the Maya, Garifuna and Xinca Peoples Unit for Environment and Natural Resources, the Preamble of which refers to Articles 4, 7 and 15 of the Convention. It notes that article 5(g) of the abovementioned Agreement establishes that the Unit’s duties include "promoting and facilitating the organization, participation and effective consultation of indigenous peoples in the sustainable management and use of the environment and natural resources" and that article 5(l) assigns the Unit the duty of "issuing an opinion on issues relating to the Maya, Garifuna and Xinca peoples in the area of environment and natural resources". Please provide detailed information on the activities carried out by the Unit pursuant to articles (g) and (l) above.

7. Justice system. The Committee notes with interest the various measures taken to apply the relevant provisions of the Convention. It notes the copy of the publication containing 24 cases of judicial decisions taken on the basis of indigenous law in compliance with the Convention. It also notes that the Public Criminal Defence Institute has set up a body, the "Indigenous Ombudsmen Project of the Public Criminal Defence Institute", which so far has ten regional offices, and that in its pursuit of the objectives of the Convention, the abovementioned Institute is promoting judicial pluralism in Guatemala by endeavouring to achieve adequate coordination between the indigenous legal system and the predominant legal system. It also notes that there has been training (with award of diplomas) on the Convention for professionals of the justice system (judges, prosecutors, ombudspersons) in collaboration with the United Nations Development Programme and that in eight departments the Supreme Court of Justice promoted a course (with diploma) on "Indigenous law and application of ILO Convention No. 169 under the judicial legislation in force". In the Committee’s view, the Government’s efforts in the area of justice deserve highlighting as they contribute to combating discrimination and serve as an example of good practice for other countries. The Committee would be grateful if the Government would continue to provide full information on the progress made and the difficulties encountered in applying the relevant provisions of the Convention.

8. Land. The Committee notes the activities of the Land Fund (FONTIERRA), an institution responsible for defining and executing public policy on land access. It also notes that the Agrarian Affairs Secretariat of the Office of the President of the Republic (CONTIERRA) is to set up an agrarian tribunal and train the judges. This institution is currently following up 2,000 land disputes, classified into four groups: occupation, law disputes, disputes regarding extraterritorial limits and cases of land regularization. Another important measure is the Act on land registry information (Decree No. 41-2005), one of the instruments envisaged in the Peace Accords to resolve land ownership problems and provide certainty in law. The above Act provides for the creation of the RIC - a record of information pertaining to land registration which serves to update the National Land Register and formulate policy in this area. The Committee requests the Government to state whether the indigenous peoples were consulted about the above Act and whether they consider that it takes into account their land access problems. It notes from the information supplied in the Government’s report that there appear to be no indigenous representatives on the RIC Governing Board, and suggests that, in view of the register’s importance in settling land disputes, the Government examine the manner in which representatives of indigenous peoples might participate in the Board. The Government is asked to keep the Committee informed on this matter. Please also indicate how indigenous peoples who have no land title but can show traditional occupation can assert these rights, and how the RIC deals with this situation.

9. With regard to its previous direct request on the activities of the Presidential Conflict Resolution Unit (UPRECO), the Committee notes that UPRECO has intervened in a number of areas in recent years, twice in connection with land and water. It also notes the information on the Joint Committee on the Land Rights of Indigenous Peoples (COPART). It would be grateful if the Government would indicate how it ensures coordination of the activities carried out by FONTIERRA, CONTIERRA, RIC, UPRECO, COPART and any other body involved in land issues pursuant to Articles 13 and 14 of the Convention. It would also be grateful if the Government would indicate briefly which provisions give effect to Articles 13 and 14 of the Convention, particularly as regards the identification of lands occupied traditionally and adequate procedures (Article 14(2) and (3) of the Convention, respectively) and how the Convention is applied in practice. Please also provide an assessment of results, progress and difficulties.

10. Article 20. Recruitment and conditions of employment. The Committee notes that, by means of orders, protective measures and registration, the Ministry of Labour’s Department of Labour Migration is taking steps to ensure that the provisions of the Convention are applied to seasonal and indigenous workers in southern Mexico who face problems of irregular recruitment. The special protective measures taken in the area of recruitment and conditions of employment include: (1) identification of recruiters: up-to-date lists are kept and submitted to authorities involved, such as Guatemalan migration delegations and Guatemalan consulates at the border before being submitted to the Guatemala-Mexico bilateral meeting of the Ad Hoc Group on Guatemalan migrant workers; (2) dialogue with Mexican employers: a meeting was held with members of the Regional Agricultural Union of Tacaná Coffee Producers, at which Mexican employers stated their wish to recruit directly in Guatemala and the Ministry of Labour stated that these workers must be registered at local border offices. Another meeting was planned in July 2005, to include mango, banana and other producers as well as coffee growers; (3) improved regularization: three different forms were introduced for (1) workers, (2) women and young migrants and (3) children accompanying their parents. The Committee notes with interest the detailed information sent by the Government and asks it to continue to provide information on developments in the situation, including figures giving an estimate of the number of Guatemalan indigenous workers in Mexico and the number of them whose status is legal. The Committee notes the programmes run by the Social Investment Fund and various state bodies. It also notes that progress has been made in placing labour inspection and indigenous language activities on a regional basis. Please provide information on the main problems encountered in applying this Article to indigenous workers in Guatemala.

11. Articles 21 to 23. Vocational training. The Committee notes that on 12 February 2004 the Government signed with the International Labour Office a letter of understanding concerning the project "Education for work, employment and rights of indigenous peoples" (ETEDPI). It notes that under the above letter of understanding, work was undertaken with communities in which there are integrated projects covering both tourism and the conservation of community resources. It also notes the progress made in the area of community tourism. Please continue to provide information on the results of this and any other projects carried out pursuant to these Articles of the Convention.

12. Social security and health. The Committee notes from the Government’s report that the Guatemalan Social Security Institute is based on Article 100 of the Constitution which lays down social security as a right for anyone, without distinction as to race, belief or economic status, who works for an employer that is officially registered with a social security regime. The Committee also notes that according to the World Bank report Indigenous peoples, poverty and human development in Latin America: 1994-2004, in Guatemala health coverage for the non-indigenous population is 18 per cent, and 5 per cent for the indigenous population. According to the Government, the Ministry of Public Health’s policy focuses on decentralizing the health service network so as to provide care through simple methods using municipal associations and health promoters. Please indicate any measures taken - and the results obtained - to extend the health coverage of the members of indigenous groups, bearing in mind that Article 25, paragraph 4, of the Convention requires the provision of health services to be coordinated with other social, economic and cultural measures in the country.

13. The Committee also notes from the above report that the prevalence of malnutrition among Latin America’s indigenous people is one of the core factors underpinning poor human development outcomes and that in Guatemala the rate of stunting among indigenous children is 58 per cent, higher than either Yemen or Bangladesh, and almost twice the rate for non-indigenous children. Considering the urgency of the matter, please indicate the measures taken, with participation by indigenous peoples, to remedy this situation.

14. The Committee also takes note of a report by the Prosecutor’s Office for Human Rights entitled "Mining and Human Rights". The Committee is concerned at the assessment in the report of the consequences for water, the environment, and the population of the prospecting carried out by the Montana-Glamis company and the use of cyanide in open cast mining. The Committee requests the Government to carry out the necessary studies, with the participation of the indigenous peoples concerned, to guarantee the health of these peoples and a healthy environment.

15. Education. The above World Bank report indicates that Guatemala has the lowest absolute levels of indigenous education, averaging just 2.5 years of schooling at the close of the decade, whereas the average for the non-indigenous population in Guatemala is 5.7 years. The report points out that well-designed, implemented and rigorously evaluated programmes can nevertheless produce significant returns. It cites, as an example, students of bilingual schools in Guatemala’s national bilingual programme, who have higher attendance and promotion rates, and lower repetition and drop-out rates. Bilingual students also attain higher scores on all subject matters, including command of Spanish. The Committee also notes from the Government’s information that in 2004, literacy was undertaken in 17 Mayan languages and that from 1997 to the present date, 200,000 persons from different ethnic groups were made literate. It also notes the Government’s endeavour to develop bilingual education, and requests it to pursue its efforts to improve education in terms both of quality and of the number of years’ schooling, in order to reduce the education gap between indigenous and non-indigenous people. Please continue to provide information on this matter.

16. Article 32. Please provide information on any international agreements concluded to facilitate contacts between indigenous and tribal peoples across borders, particularly with Mexico.

17. Part VIII of the report form. The Committee is of the view that the Convention is essentially an instrument for promoting dialogue and participation, and reminds the Government that this part of the report form, approved by the Governing Body, states that "although such action is not required, the government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application". The Committee would be grateful if the Government would state whether such consultation is envisaged.

CMNT_TITLE

1. The Committee takes note of the Government’s detailed report and the attachments thereto. It also notes: (1) the third report on compliance with the Convention in Guatemala, produced by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Central Union of Guatemalan Workers (CGTG) on 2 November 2005; (2) general comments by the Government on the COMG’s communication received on 31 March 2005; (3) a communication of 21 January 2005 from the Union of Guatemalan Workers (UNSITRAGUA); and (4) the Government’s comments on the latter, received on 11 November 2005.

2. The Committee notes with interest that on 30 September 2005 a Guatemalan delegation, which was headed by the Vice-President of the Republic and included Rigoberta Menchu, winner of the Nobel Peace Prize, came to ILO headquarters in Geneva and made a request for technical assistance from the Office in connection with Convention No. 169 in relation to a number of disputes that have arisen regarding indigenous matters. The Government says that it is anxious to overcome the systematic exclusion of indigenous peoples from decision-making regarding policy and to find solutions to disputes (usually about land) and to establish better machinery for consultation.

3. The Committee also notes that in November 2005 the Governing Body declared receivable a representation submitted by the Federation of Rural and Urban Workers under article 24 of the ILO Constitution alleging non-compliance by the Government with some provisions of the Convention.

Articles 6 and 7 of the Convention. Consultation and participation

4. The Committee takes note of the information in the above third report by the COMG. According to the report, indigenous peoples constitute the largest population in Guatemala and the main workforce and that their rights need to be fully recognized. Efforts are made sporadically towards providing an institutional basis for participation of indigenous peoples; a number of judicial decisions and other measures give effect to the Convention, but the COMG  emphasizes that there is no coherent policy on institutions that combines political, administrative and financial measures to attain the objectives of the Convention. The report indicates that participation continues to be symbolic and the political and electoral system remains an instrument of exclusion. The report indicates that there is no specific institutional machinery for consultation and that, during the previous administration, 31 concessions were granted for the exploitation of mineral resources and 135 for exploration, with no prior consultation with the indigenous peoples as to the viability of such activities or their environmental impact. These activities are still ongoing and there are no programmes to curtail the impact of the prospecting and exploitation or to compensate communities which may be adversely affected.

5. In its comments on the above report, the Government indicates that indigenous participation is being strengthened, and that the last few months of 2004 saw the establishment of a preparatory body of the Advisory Council on Indigenous Peoples and Pluri- and Inter-culturalism the task of which is to set up a Standing Advisory Council to advise the Government on public policy governing indigenous matters. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was established. According to the Government, indigenous participation in political parties is a slow process but headway is being made, though it must be acknowledged that the parties need to revise their objectives and enhance participation and that the indigenous peoples ought to make more substantive proposals rather than formal ones. The Government acknowledges that there are no consultation mechanisms and that one of the main items on the agenda of the Joint Committee on Reform and Participation is the drafting of a "Bill on the consultation of indigenous peoples".

6. The Committee observes that since 1998 it has been requesting information on the consultation machinery set up pursuant to the Convention. It draws the Government’s attention to the fact that the provisions on consultation, particularly Article 6, are the core provisions of the Convention and the basis for applying all the others. Consultation is the instrument that the Convention prescribes as an institutional basis for dialogue, with a view to ensuring inclusive development processes and preventing and settling disputes. The aim of consultation as prescribed by the Convention is to reconcile often conflicting interests by means of suitable procedures. The Committee notes with interest that the Government has given this situation attention by seeking technical assistance from the Office in order to give effect to the Convention’s provisions on consultation. It invites the Government to continue along this path and hopes that next year it will be in a position to provide information on the legislative and practical measures taken to give effect to this key aspect of the Convention.

Article 15, paragraph 2. Communication from UNSITRAGUA
alleging failure to consult the peoples concerned to ascertain
whether and to what degree their interests would be prejudiced
by the granting of permits  to Montana-Glamis Gold

7. The Committee notes that, according to UNSITRAGUA, the Government recently granted a permit for mining prospection and exploitation in the departments of San Marcos and Izábal to Montana Exploradora S.A., a subsidiary of the Canadian mining company Glamis Gold. UNSITRAGUA indicates that the area involved contains two of Guatemala’s main lakes - Atitlan and Izábal - where there are eco-tourism resorts. Mining operations, which would require 250,000 litres of water per hour, would place the potable water supply under serious risk of pollution. Furthermore, despite opposition to the mining activities by the population of Sololá and San Marcos, in an act of intimidation the Government allowed the company’s equipment to be brought in under the escort of 1,300 members of the police and the army. This operation began on 11 January 2005. The local population staged public protests and blocked the road. According to UNSITRAGUA, the Government stated that the people were armed, although no weapons were seized. However, one villager died and many others were injured.

8. UNSITRAGUA emphasizes that the death is the consequence of a mining policy imposed - without prior consultation - on the premise that corporate interests rank higher than social interests and respect for the land, culture, beliefs and opinions of the indigenous peoples of Guatemala and even their lives. The Committee asks the Government to provide information on what occurred, indicating whether the persons responsible have been identified, tried and punished.

9. In its response, the Government indicates that Guatemalan legislation requires environmental impact studies to be carried out and submitted before any type of prospecting or exploitation permits are granted. The requisite studies were submitted by the Directorate General for Management of the Environment and Natural Resources of the Ministry for the Environment and Natural Resources which approved by resolution No. 779-2003/CRMM/EM the study submitted by Montana Exploradora. The permit was granted in the Department of San Marcos, but not in Izabál, and UNSITRAGUA’s communication fails to explain how the damage to lakes Atitlan and Izabál was caused. The Government concedes that there is no institutional machinery for consultation with the indigenous peoples, but indicates that approaches have been made to the indigenous communities. For example, it cites the organization of the First National Forum on Mining in 2005 and indicates that the Forum’s 11 promoters sent the Government the ten main conclusions of the meeting. The Government also reports that a High-level Commission has been set up with representatives of the Government and the Catholic Church and that in August 2005 an understanding was signed seeking amendment of the Mining Act with regard to compensation, environmental health and consultation of indigenous peoples. The Government also points out that Guatemala has already sought ILO technical assistance to resolve the problems of holding consultations with indigenous peoples within the framework of the Convention. According to the report, the Government acknowledges that "the violence occurred owing to the transport of the machinery carried out in compliance with authorizations properly issued by the competent authority".

10. The Committee notes that the above communication refers to a lack of consultation in the manner prescribed by the Convention regarding the use of natural resources. The relevant provision is Article 15, paragraph 2, in conjunction with Articles 6 and 7 of the Convention. Article 6 refers to the procedure for consultation, Article 7 to the process of development and Article 15, paragraph 2,  governs consultations on natural resources in particular and sets the objective of consultation: "ascertaining whether and to what degree [the] interests [of these peoples] would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of (…) resources pertaining to their lands".

11. The Committee observes that the Government does not deny the alleged lack of consultation and indicates that the company carried out an environmental impact study that was approved by the relevant government department. The Committee also notes that the villagers protested against the mining project and the violence that occurred. Further, the Committee notes the concerns expressed by the Office of the Human Rights Ombudsperson of Guatemala in its report of May 2005 on mining activities. The Office of the Ombudsperson refers explicitly to the project criticized by UNSITRAGUA and expresses concern of the risks of opencast mining and in particular the method used, namely leaching by cyanide. The report indicates that this type of process has had detrimental consequences on the environment and health in other countries, has been prohibited in other regions of the world and its potential impact could harm: (1) water sources; (2) air quality through the emission of particles; and (3) the use and fertility of the soil which is permeated by cyanide compounds. The Committee draws the Government’s attention to the fact that these types of risks should be the subject of consultations, as set out in Article 15, paragraph 2, in conjunction with the studies required by Article 7, paragraph 5, of the Convention.

12. The Committee recalls that the Convention lays down certain requirements to ensure that the exploration and exploitation of natural resources comply with the Convention. It draws the Government’s attention to the fact that these requirements were not fulfilled in the case of the permit referred to by UNSITRAGUA.

13. The impact study carried out by the company is no substitute for the consultations required by Article 15, paragraph 2,. This provision stipulates that "governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands". As the Committee has pointed out in other similar cases, responsibility for consultation lies with the Government, not the company. Furthermore, in establishing or maintaining procedures, governments must take into account the procedural requirements laid down in Article 6 of the Convention and the provisions of Article 7 of the Convention, according to which "Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities."

14. The Committee accordingly invites the Government to carry out consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15, paragraph 2,  of the Convention. The Committee also asks the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7 of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Please supply detailed information on this matter, taking into account the fact that the Office of the Human Rights Ombudsperson has expressed concern about the award by the Government without consultation of 395 exploration and exploitation permits, some 200 of which are reported to be in the process of being approved.

15. In conclusion, the Committee notes that the two above communications refer to problems and disputes arising from the lack of machinery for consultation. It also notes that this has become a matter of special interest in Guatemala, and that the Government has taken significant steps towards finding a solution, as shown by the information supplied by the Government on the National Forum on Mining, the understanding signed with the Catholic Church and the Government’s request to the Office for assistance in establishing a framework for consultation with the indigenous peoples in the context of the Convention. Stressing that consultation is the key to all other provisions of the Convention, and reaffirming that this is the instrument of dialogue provided for in the Convention as a foundation for an inclusive development process, the Committee urges the Government to step up its efforts to take all the necessary measures, in consultation with the indigenous peoples and with the technical assistance of the Office to give effect in law and practice to Articles 6, 15, paragraph 2, and 7 of the Convention. The Committee hopes the Government will be in a position to provide detailed information on the measures taken and the progress achieved in this regard in 2006.

The Committee is sending a request directly to the Government on related matters and on other points.

[The Government is asked to reply in detail to the present comments in 2006.]

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1. With reference to its observation, the Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, in the report dated 1 September 2003 and in the communication to the Office dated 9 June 2003. It also notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64), and the attachments to these reports. The Committee notes the report provided by the Government to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and the content of the reports submitted by the Special Rapporteur to the 59th Session of the United Nations Commission on Human Rights. The Committee also notes the legislative texts provided by the Government with its reports.

2. The Committee is also examining the reports on Conventions Nos. 50 and 64, in the context of the application of the present Convention, thereby complying with its obligation to analyse the implementation of these instruments by the Government. Conventions Nos. 50 and 64 were adopted in relation to the situation of indigenous workers in dependent territories and the Governing Body has decided that these instruments are no longer up to date. As proposed at the time by the Governing Body, the Committee requests the Government to consider denouncing these Conventions when the occasion arises (in 2006 for Convention No. 50 and 2009 for Convention No. 64).

3. Article 4 of the Convention. The Committee recalls that the report of the United Nations Verification Mission in Guatemala (MINUGUA) indicated that serious problems are caused by the fact that members of the indigenous communities, and particularly women and those in rural areas, are undocumented. The Committee notes the information provided by the Government in reply to its previous comments, according to which the Office of the Ombudsman for Indigenous Women (DEMI) and organizations such as the Office of the Ombudsman for the Maya, CONVAIGUA and CERJ are contributing to obtaining documents for indigenous persons. It also notes that a legal extension has been accorded and that instructions have been provided to civil registrars on this important issue. The Committee requests the Government to provide information in its next report on the number of indigenous persons who have been issued with personal documents since the entry into force of Decree No. 22-2002.

4. Article 7. The Committee notes the information provided by the Government in its report indicating that indigenous peoples are consulted concerning their social, economic, political and cultural development, including the preservation of the environment, in joint commissions. The Committee notes the Government’s reply to the comments on the first report made by the Council of Mayan Organizations of Guatemala (COMG) referring to the lack of coordinated planning for development and the absence of studies on its impact on indigenous peoples. It also notes the information that, in accordance with the Decentralization Act, the new Ministry of the Environment, and still more recently the Ecological Consultative Council, promote the participation of indigenous peoples in matters relating to their development. The Committee further notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), referring to the lack of criteria and awareness of the impact on environmental conservation of, among other factors, the deforestation of 90,000 hectares a year and the fact that, according to studies carried out in 1999, only 5 per cent of the potentially irrigable lands are irrigated. The Committee notes with interest the information provided in the Government’s report on the annulment of a contract which in the view of indigenous organizations was damaging to the environment and it trusts that the Government will adopt measures for the preservation of the environment, particularly in areas inhabited by or used by the various indigenous communities. The Committee would be grateful if the Government would continue to provide information on this matter.

5. Article 8. The Committee would be grateful if the Government would provide with its next report copies of judicial decisions or accords concluded through mediation and conciliation giving effect to the right of indigenous peoples to manage their own affairs in accordance with their customs or customary laws. Recalling the concern expressed in this regard by MINUGUA, to which the Committee referred in previous comments, the Committee hopes that the Government will continue to provide information on the progress achieved in this respect.

6. Article 11. The Committee notes the Government’s statement concerning the prohibition in law of forced labour and the inspections of workplaces with a view to combating forced labour. The Committee once again refers to its comments in relation to Convention No. 29.

7. Article 12. The Committee notes with interest that measures are being adopted in the context of the Supreme Court of Justice to achieve an ethnic and bilingual composition of officials whose functions are directly related to indigenous peoples. The Committee requests the Government to continue providing information in its next report on the progress achieved in this respect in the various regions in facilitating the access to justice of members of indigenous communities who wish to protect the rights guaranteed by this Convention and in strengthening the regional activities undertaken by the DEMI and by public institutions such as the National Civil Police. The Committee would be grateful if the Government would provide a copy of the first report of the DEMI on situations and rights of indigenous women. The Committee also notes the information concerning the measures adopted in the context of the Office of the Attorney-General, particularly concerning the establishment of an Office of the Public Prosecutor for indigenous peoples. The Committee requests the Government to provide more detailed information on the composition and functions of the above body.

8. The Committee notes the information provided by the Government in its last report on the establishment by various organizations of the Mayan people of a tribunal to promote awareness against racism. The Committee requests the Government to provide copies of the complaints filed with the above tribunal which are related to the rights protected by the Convention, and any related ruling that is adopted.

9. Articles 13 to 19 (lands). The Committee notes the indication by the Special Rapporteur, referring to the reports of MINUGUA, that the commitments made by the Government under the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) to guarantee the land rights of indigenous peoples have had to be rescheduled owing to lack of compliance. The Committee notes that these commitments related to the regularization of land tenure and guarantees of the rights of indigenous people to the use and management of their lands and resources, as well as the restitution of communal land or compensation for dispossession, and the acquisition of land for the development of indigenous communities. The Committee also notes that the Special Rapporteur recommended that the Government recognize and take measures to support the maintenance by indigenous peoples of their own economic system, including subsistence agriculture.

10. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 indicating that there is no legal guarantee or certainty concerning the use, tenure and ownership of land in rural areas. The Committee notes the information provided by the Government in the report to the Special Rapporteur concerning the action taken to allow access to land by members of indigenous communities and to resolve disputes in this connection. In this regard, the Committee requests the Government to provide information on the activities undertaken by the Presidential Conflict Resolution Unit (UPRECO). It also notes the information concerning the submission to the Congress of the Republic by the recently established Secretariat for Agrarian Affairs of various Bills for the regularization of land tenure, the establishment of an Agrarian Attorney’s Office and on unused and communal land. The Committee also notes the information received in the Government’s last report on Government Agreement No. 248-2003 on the establishment of a Joint Commission on the Land Rights of Indigenous Peoples (COPART) to promote conflict resolution. The Committee would be grateful if the Government would keep it informed in its next report of the progress achieved in this important area, including information on the various issues raised by the Committee in paragraph 17 of its direct request in 2001.

11. With reference to its previous comments, the Committee requests the Government to indicate whether measures have been adopted to increase the number of official administrators of the 124 areas that have been declared protected and which are inhabited by indigenous communities.

12. Article 20. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 according to which most of the men and women living in rural areas, who account for 60.6 per cent of the total population, live in conditions of extreme poverty. It also notes with concern the information provided by the Government in its report for the Special Rapporteur on the grave situation of indigenous persons displaced and unemployed as a result of the coffee crisis, which was reiterated by the Government in its reports on the application of Conventions Nos. 50 and 64. In relation to these matters, the Committee refers once again to the comments made by the COMG and the Central Organization for Rural and Urban Workers on the grave exploitation of indigenous workers in agriculture, domestic work and manufacturing. The Committee requests the Government to continue providing information in its next report on the measures envisaged to improve the conditions of employment and the living conditions of indigenous communities, and the impact of these measures.

13. The Committee notes the information provided by the Government in its report on the application of Convention No. 64 indicating that it is currently formulating specific regulations on the hiring of indigenous agricultural workers. The Committee trusts that the Government is holding adequate consultations with the representative bodies of indigenous communities on the content of these regulations. It also hopes that the regulations on the hiring of indigenous agricultural workers will take into account its previous comments on the application of Convention No. 64, particularly with regard to the need to undertake a medical examination when concluding a contract of employment (Article 7) and on the guarantees which have to be given for the transport of repatriated workers (Articles 12, paragraph 1, and 15). The Committee hopes that the Government will send a copy of the above regulations with its next report.

14. The Committee notes the information provided by the Government that the Indigenous Peoples Unit of the Ministry of Labour and Social Insurance concluded an agreement with the Committee for the Decade of the Mayan People for the establishment of a degree course and the provision of training to attorneys and labour inspectors to promote the application of the Convention. The Committee once again refers to its comments on the application of the Labour Inspection (Agriculture) Convention, 1969 (No. 129), in which it reminded the Government of the need to adopt measures for the training of labour inspectors. The Committee requests the Government to provide detailed information on the progress achieved in the regionalization of labour inspectorates with ethnic and linguistic components and the training of labour inspectors. It also requests it to provide statistics on the number of inspections carried out and violations reported, with particular emphasis on the recruitment and conditions of employment of agricultural workers.

15. Articles 21, 22 and 23. The Committee notes the information provided by the Government in the report to the Special Rapporteur on the activities of the National Institute of Technical and Productive Training (INTECAP), the support provided for the expansion of small and micro-enterprises and the Credit Revolving Fund Programme. The Committee trusts that the Government will provide further information in its next report on the measures adopted in consultation with the communities concerned, with a view to vocational training and the promotion of handicrafts and rural-based industries, which form part of their subsistence economy.

16. Article 25. The Committee reiterates its previous comment requesting the Government for additional information on the measures envisaged to provide adequate health coverage in the areas inhabited by indigenous peoples, taking into account the linguistic and cultural conditions of the community, particularly with regard to traditional care, and promoting the training and employment of workers from local communities in assistance centres.

17. Articles 26 to 30. The Committee notes the Government’s indication that the Joint Reform and Participation Commission began work in 2002 on the regionalization of linguistic criteria for the administration of education, health and cultural services, and the information provided on the activities launched in the context of the National Literacy Programme. The Committee requests the Government to continue providing information in future reports on the impact of the activities undertaken in relation to the literacy rate of members of indigenous communities, as well as the progress achieved in the field of bilingual literacy at all educational levels, particularly in rural areas, and for the inclusion of themes which take into account the cultural and historical heritage of indigenous traditions.

18. The Committee notes the information provided by the Government in the report submitted to the Special Rapporteur concerning the examination of a new project to allocate 26 radio frequencies. It also notes the plan to launch, with the support of the Academy of Mayan Languages, a radio campaign in Mayan languages to promote and provide information on the new legislation in the various indigenous communities. The Committee trusts that the Government will continue to provide information on these matters in its next report.

19. Article 32. The Committee notes the information provided by the Government concerning the adoption of measures relating to the movement of migrant workers at the border. The Committee trusts that the Government will continue to provide information on the activities undertaken in this field.

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1. The Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, the report dated 1 September 2003 and the communication transmitted to the Office on 9 June 2003. It also notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the annexes to the above report. The Committee also notes the report provided by the Government to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and the content of the report prepared by the Special Rapporteur for the 59th Session of the United Nations Commission on Human Rights, held in February 2003. The Committee further notes the legislative texts provided by the Government with its reports, and particularly Government Agreement No. 258-2003 establishing the National Compensation Programme.

2. The Committee also notes the detailed report on the application of the Convention sent by the Trade Union of Workers of Guatemala (UNSITRAGUA) in September 2003, and requests the Government to provide its comments thereon with its next report.

3. Article 2 of the Convention. The Committee notes the intense legislative activity, particularly over the past two years, on the rights of indigenous peoples and their development. The Committee notes with interest the reform of the Penal Code (Decree No. 57-2002) penalizing discrimination on grounds, among others, of race and ethnic group; the adoption of the Act promoting educational activities against discrimination (Decree No. 81-2002) implementing non-discrimination programmes in teaching and the activities of the Ministry of Culture and Sport; and the adoption of the Act respecting national languages (Decree No. 19-2003) guaranteeing and protecting the languages of the Maya, Garífuna and Xinka peoples. It also notes the reforms to the Municipal Code by Decree No. 12-2000, particularly with regard to the recognition of indigenous authorities and their customary laws. The Committee would be grateful if the Government would provide information on the manner in which the new legislative structure relating to indigenous peoples will be made known to the public in general. It also requests the Government to provide a general evaluation, in so far as possible, on the impact of the new legislation on the application of the provisions of the Convention.

4. The Committee notes with interest the information provided by the Government concerning the establishment of an Indigenous Affairs Commission in the Supreme Court and the creation of the Presidential Commission on Discrimination and Racism against Indigenous Peoples in Guatemala (Government Agreement No. 390-2002). It also notes the restructuring of the Guatemalan Indigenous Fund (FODIGUA), as well as the adoption of Ministerial Agreement No. 525-2002 of the Ministry of Culture respecting sacred sites. The Committee would be grateful if the Government would provide a copy of this Agreement with its next report and provide information that is as detailed as possible on the activities of the above commissions and the Fund for the achievement of their respective objectives.

5. The Committee takes special note of the information provided by the Government in its report to the effect that the measures adopted have not yet been sufficient to eliminate the inequality, marginalization and exclusion of indigenous peoples. It also notes the Government’s indication that, although the authorities justify the measures taken against racism and exclusion on the basis of the principle of equality, this principle is not given effect in law or practice. The Committee welcomes the attitude shown by the Government when it charges racists of failing to recognize that a people that has been subjected for 300 years requires effective mechanisms to strengthen it and create the conditions for its development in a manner which gives effect to the principle of equality. While recognizing that, despite the efforts made, these ideals cannot be achieved easily and in the short term, the Committee encourages the Government to continue its efforts to convert these aspirations into reality, based on the strict application of the programmes adopted and their follow-up as necessary.

6. The Committee notes the information provided in the report of the Special Rapporteur indicating that the measures adopted by the Government have had little effect in combating the political, economic, social, occupational, educational and cultural discrimination suffered by indigenous communities. The same opinion was expressed previously in the report of the United Nations Verification Mission in Guatemala (MINUGUA) in 2001, which was examined in detail in the Committee’s previous observation. The Committee expresses the very firm hope that the Government will be in a position to provide information in its next report on the positive impact of the legislative measures and various initiatives it has taken to promote tolerance in civil society and to provide a basis for the effective participation of indigenous peoples in the adoption of decisions in the areas referred to by the various parts of the Convention, as well as for the implementation of the Peace Agreements, and particularly the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) and in relation to the socio-economic and agrarian situation.

7. Article 6. The Committee takes due note of the information contained in the Government’s report indicating that, although an ideal mechanism has not been established for consultation with indigenous peoples, the Government’s policies are not prejudicial to these peoples. The Committee notes in this respect the information provided by the Government indicating that the representation of the Government and indigenous peoples has been increased in the Joint Reform and Participation Commission to strengthen its plurality and increase the participation of women. It also notes that the Commission is currently formulating draft legislation on consultation mechanisms with indigenous peoples. The Committee trusts that the Government will be in a position to report the adoption of this legislation in its next report and to provide details of the degree of representativeness achieved, taking into account the existence of the numerous indigenous communities. With reference to the information provided in the Government’s last report, the Committee would be grateful if it would provide information in its next report on the progress achieved in the establishment of a consultative body for the Mayan people.

8. The Committee notes with interest that, through the Joint Reform and Participation Commission, proposals made by the representatives of indigenous peoples have been incorporated into the Decentralization Act, the Act respecting urban and rural development councils and the Municipal Code. The Committee requests the Government to provide information in its next report on the number and nature of the consultations held with indigenous peoples under section 26 of Decree No. 11-2002, which amended the Act respecting urban and rural development councils.

9. Article 20. The Committee notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), which it is examining in the context of the present Convention. It notes that a special recruitment contract has been developed to guarantee the rights of indigenous workers in relation to labour recruiters. It also notes the information concerning the forms used by the Association of Employment Advisers to prevent abusive practices in the hiring of temporary Guatemalan migrant workers. The Committee requests the Government to continue providing information on the measures adopted or envisaged to control abusive practices in the recruitment of indigenous workers for agricultural activities which occur, according to the Government, both in Guatemala and in the south of Mexico and Belize. Please also indicate any measures to prevent chiefs and other indigenous authorities acting as recruiting agents or exerting any pressure on workers who may be recruited, or who receive pay or any other special consideration for assisting in recruitment. The Committee notes that comments on the application of Convention No. 50 were included in the communication by UNSITRAGUA.

10. A more detailed request is also being addressed to the Government on certain points.

[The Government is asked to report in detail in 2005.]

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1. The Committee refers to the observation it is making this year.

2. Article 1 of the Convention. The Committee notes from the information communicated by the Government that of a total population of 10.5 million, 5.1 million are indigenous, composed of 24 ethnic groups. It also notes that some 1.38 million indigenous people live in urban areas, and 3.75 million in rural areas.

3. Article 2. The Committee notes the information provided by the Government on the work undertaken for the implementation of the Peace Agreements, which has resulted in the creation of a number of joint committees, two special commissions and one on the recognition of indigenous languages and sacred places. It also notes that the indigenous peoples themselves have organized eight national permanent commissions on questions including women, indigenous law and constitutional reform for which there are corresponding mechanisms for dialogue with the Government. The Committee notes, however, that the MINUGUA report referred to in the observation indicates in paragraph 88 that, while the joint committees are important mechanisms for discussion and consultation, they also have encountered problems including: (1) the representative nature of the indigenous side has been questioned as the broad and dispersed indigenous movement evolves; (2) the Government’s representatives have not always had the power to take decisions; and (3) there have been budgetary limitations on their functioning, and for disseminating and consulting on their proposals. Recalling that these are important mechanisms for the implementation of the Convention and for consolidating the Peace Agreements, the Committee hopes the Government will do everything possible to improve their functioning and that it will keep the Committee informed of their progress in future reports.

4. Article 3. The Committee notes from the report that there is a draft legislative decree to amend the Penal Code and make racial discrimination a crime, which the Committee understands still has not been adopted. Please indicate in the next report the progress that has been achieved in this respect.

5. Article 4. The Committee notes the information provided in the Government’s report on the functioning of the Joint Commission of Reform and Participation at all Levels, which was established by Government Agreement No. 649-97. It notes that this Commission has completed proposals for reforms to the Municipal Code and to the law concerning the National System of Development Councils, and has carried out various studies concerning participation of indigenous peoples in decision-making in various fields. The Committee also notes that following the failure of the constitutional reforms, the Commission has decided to revise its proposals. Please provide information on the form this has taken.

6. The Committee notes from the MINUGUA report cited above (paragraphs 79-82) the serious problems caused by the fact that many indigenous peoples are undocumented, particularly indigenous women in rural areas. It notes the adoption of a law concerning documentation (Ley Temporal de Documentación), but also notes MINUGUA’s comment that no regulations have been adopted to apply it, and that the lack of training of the civil registrars has limited its effect. Please provide information on the measures taken to make this legislation effective.

7. Article 6. See the observation.

8. Article 7. As concerns participation of indigenous peoples in decisions concerning development as it affects them, the Committee notes that the Government has referred to urban and rural development councils, but has not indicated whether they have indigenous participation and if so at what level, nor has it supplied information on their workings. It has also indicated that many consultations are carried out concerning development plans, in the context of decentralization.

9. On the need to undertake studies, in cooperation with the peoples concerned, to assess the impact on them of planned development activities, and the obligation to preserve and protect the environment they inhabit, the Government has referred to the bodies responsible for this, and states that there are 124 areas declared protected, which are inhabited by indigenous communities, though unfortunately only 99 of them have an officially assigned administrator. At the same time the Council of Mayan Organizations of Guatemala (COMG), in its observations on the Government’s first report, said that there was little coordinated planning concerning development, and that no impact studies are carried out. The Committee requests the Government to provide information on how the consultation of indigenous peoples’ organizations concerning development, including for the preservation of the environment, is carried out in practice.

10. Articles 8, 9 and 10. The Committee notes that a provision which would have recognized customary law of the indigenous peoples, was included in the constitutional reforms that were not adopted. It notes from the report, however, that a recent reform of the Penal Procedure Code (Decree No. 79-97) created Community Justices of the Peace who are empowered to apply "the uses and customs of the different communities for the solution of conflicts"; this, however, applies only to conflicts and not to other areas of law. The Government has also signalled a growing interest among state institutions to recognize cultural diversity, such as the recruitment of some bilingual officials for the Public Defender’s office and in the judiciary support services, the research being carried out into customary law, as well as the training programme for judicial interpreters of indigenous languages being carried out with the support of MINUGUA. In addition, it notes the incorporation of cultural training in the National Civil Police Academy, and the launching of a process of consultation with indigenous organizations by the Human Rights Prosecutor. The COMG says in its comments, on the other hand, that the creation of the Community Justices of the Peace is a violation of the Agreement on the Identity and Rights of the Indigenous Peoples, in which the Government promised to respect the right of indigenous peoples to handle their own internal affairs.

11. The MINUGUA report devotes considerable space (paragraphs 56-67) to this question, concluding that there is a real prejudice against indigenous customary law on the part of the "practitioners" (operadores) of the justice system, mostly based on ignorance of both the languages and the cultures of the indigenous peoples. The report states (paragraph 58) that "In some cases, the cultural barrier can mean that cultural differences are criminalized." The report also indicates that there have been some advances in this area, citing the increase in posts for judicial interpreters, and encouragement of the recruitment of judges who speak indigenous languages in areas where indigenous peoples are in the majority. Nevertheless, the few institutions, national and international, which are trying to provide bilingual and bicultural officials, cannot cope with the demand. Finally, the MINUGUA report indicates that studies have shown that the majority of indigenous peoples in the country retain and exercise their own normative systems for their internal affairs.

12. The Committee notes the fundamental nature of this problem, and that the measures so far taken have not been able to respond adequately to the need. It encourages the Government to continue to work on this problem, in consultation with the indigenous peoples, and to provide information in its next report about the progress achieved and the additional measures being taken.

13. Article 11. The Committee refers to its comments under Conventions Nos. 29 and 105 concerning the exaction of forced labour from indigenous peoples, and the impunity of those who impose it. It requests the Government to provide detailed information on the suppression of forced labour among indigenous peoples, including the implementation of the "Food for Work" programme in indigenous communities.

14. Article 12. The Committee notes that the Government indicated in its first report that access to justice is available to all for no cost, and that in order to allow access by members of the indigenous peoples to labour inspectors, all those working in indigenous areas must be bilingual. Other measures concerning bilingual officials have also been indicated (see above). The Committee notes in this connection the report of the United Nations Special Rapporteur on the Independence of Judges and Lawyers on his mission to Guatemala (UN document E/CN.4/2000/61/Add.1 of 6 January 2000) in which he indicates in paragraph 108 that: "The most common contention the Special Rapporteur encountered was that the Mayan people have suffered from discrimination before the courts. There were allegations that this discrimination, including by judges, extended to indigenous defence lawyers, witnesses and court officials. A facet of this discrimination was that there is allegedly no budget allocation for the provision of interpreters."

15. The Committee requests the Government to provide information on the methods which have been taken or are contemplated to guarantee to these peoples the right to initiate legal proceedings and to understand and be understood in them in order to protect their legal rights.

16. Articles 13-19. Land. The Committee notes the statement in the Government’s report that land-related conflicts in Guatemala are extremely complex because of the many causes of such conflicts - historical, ethnic, political, religious, etc. - intensified by the internal armed conflict, the lack of a national land register and the inadequacy of the General Property Register, among other causes. The Government states that the Agreement on Socio-economic Aspects and the Agrarian Situation recognizes the importance of the resolution of land conflicts for the construction of peace, and the Government therefore promised to put into place a Presidential Office for Legal Assistance and the Resolution of Land Conflicts (CONTIERRA), which was done in July 1997. The Committee notes also the creation of the Joint Committee on the Land Rights of Indigenous Peoples, and a number of other measures in this regard. The comments by the workers’ organizations point to continuing problems in this area, to loss of rights by indigenous communities and incursions on their lands, and related problems. The MINUGUA report refers (paragraph 73) to the lack of official recognition of indigenous land rights, lack of precision in the definition of boundaries of indigenous lands and the frequent absence of land registration.

17. The Committee requests the Government to provide detailed information in its next report on the measures taken or contemplated in this area, including the abovementioned questions and:

-  progress on the adoption of the Basic Law on Land (Ley del Fondo de Tierras);

-  whether procedures have been established for consultation of indigenous communities before undertaking or permitting any programme for the exploration or exploitation of natural resources on indigenous lands (Article 15(2));

-  the practical application of customary indigenous agrarian law in the transmission of land rights (Article 17);

-  information on measures taken or contemplated to prevent unauthorized intrusions onto indigenous lands (Article 18).

18. Article 20. Conditions of work. The Committee notes from the Government’s reports that no special measures have been taken to protect the rights of indigenous peoples in the field of labour, though the Ministry of Labour continues its process of decentralization to the different regions of the country. The comments by the COMG and the Central Organization for Rural and Urban Workers (CTC) indicate that serious exploitation of indigenous workers continues to exist in agriculture, domestic service and manufacturing, and that labour inspection for these peoples exists only in theory. The Committee requests the Government to provide detailed information on the measures taken to provide labour inspection in areas and occupations in which indigenous peoples are concentrated, with particular attention to the detailed comments which the Committee has made on the application by Guatemala of the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

19. Articles 21 and 22. The Committee notes that in the context of the Peace Agreements, the Government committed itself to a large programme of vocational training for indigenous workers. It notes from the report the large number of indigenous students who have so far been trained, and requests the Government to continue providing information on this in future reports.

20. Article 23. The Committee notes that the Government has provided no information on the promotion of traditional handicrafts and rural-based industries, and that the COMG and the CTC state that no such programmes exist. Please provide information in the next report on any measures that may be contemplated in this regard.

21. Articles 24 and 25. Social security and health. The Committee notes the information the Government has provided on the number of health posts and other medical facilities in indigenous areas. It notes the statements in the information provided by the COMG and the CTC that there are no hospitals in Mayan areas, only some health posts, and that they are staffed by monolingual persons who do not speak the languages of the communities in which they work. Please provide additional information on the measures contemplated to provide adequate health coverage in areas inhabited by indigenous peoples.

22. Articles 26-30. Education. The Committee notes with interest the detailed information communicated by the Government in this respect. It notes that the Joint Committee for Educational Reform submitted its Design for Educational Reform in July 1998, and that draft legislation on this subject is before the Congress. The COMG and the CTC indicate, on the other hand, that reform is blocked by interested parties who focus on a monolingual approach and are not interested in educational reform. The abovementioned MINUGUA report indicates that, while budgetary provision is adequate, and there has been an increase in the coverage of education, and the Design of the Educational Reform corresponds to the obligations undertaken in the Peace Agreements, there remain many gaps in indigenous education. Please continue to provide information in this regard.

23. Article 31. Means of communication. The Committee notes the statement in the Government’s report that significant means of access to radio communications have been provided to indigenous communities. It also notes that the COMG and the CTC indicate that the access provided is very limited, and emphasize the need for radio communications to help educate the indigenous population about their rights, including the provisions of Convention No. 169. Please provide additional information in this regard in the next report.

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1. The Committee notes the Government’s second report following ratification, which was received too late to be examined at the previous session. This report, supplied by the Government in October 2000, provides more detailed information on a number of matters than was included in the first report. However, on many of them it indicates that the measures to be taken were covered by the referendum on constitutional reforms which was drafted in implementation of the Peace Agreement. This referendum was rejected by a popular vote on 16 May 1999, but the Government has offered little additional information on the measures which have been taken since then or are contemplated, to implement the Convention and the Peace Agreement.

2. The Committee also notes a communication from the Central Organization for Rural and Urban Workers (CTC), which was communicated to the Government on 28 September 2000, but concerning which the Government has made no comments. The CTC communication indicates that it was drawn up in consultation with the Council of Mayan Organizations of Guatemala (COMG) and the National Indigenous and Rural Coordinating Organization (CONIC). It is characterized as the Second Alternative Report on the application of the Convention, from the perspective of the Mayan people and Guatemalan workers. It also indicates that it is following up the First Alternative Report, submitted by the Federation of Rural Workers (FEDECAMPO), on whose report the Committee regrets the Government also has provided no reply.

3. The other principal source of information available to the Committee is the various reports of the United Nations Verification Mission in Guatemala (MINUGUA), established by the General Assembly in 1997 to verify compliance with the Peace Agreements. The most recent of these reports, published in September 2001, is entitled "Indigenous peoples of Guatemala: Overcoming discrimination in the context of the Peace Agreements" ("Los pueblos indigenas de Guatemala: la superación de la discriminación en el marco de los Acuerdos de paz"). MINUGUA has also published a number of other reports which give a clear picture of the situation.

4. These sources taken together indicate that major problems remain in the implementation of the Peace Agreements as concerns the indigenous peoples of the country, and in the implementation of the Convention. The CTC report details, in respect of most of the Articles of the Convention, the lack of decentralization of administration to the regional level that was contemplated in order to provide indigenous peoples with a greater voice in the administration of their own affairs. It states that "(T)he Peace Agreements have facilitated dialogue between representatives of the Mayan organizations and the Government, but they have not generated real results; for example, the Executive Body has not consulted indigenous organizations and communities on the process of decentralization".

5. The trade union organizations also comment on the lack of real consultation with the indigenous peoples of the country on the implementation of the Peace Agreements (Article 6 of the Convention). They state that although mechanisms are provided for, they are not actually functioning. The Government has indicated in its last report, on this question, that the Congressional Committee on Indigenous Communities which has a majority of indigenous members constitutes a direct channel for the indigenous peoples to make their views known. Please provide additional information allowing an assessment of the situation in practice.

6. The Committee notes also the following comment by MINUGUA in its September 2001 report, based on close observation in the country of the developing situation: "The Mission has noted on several occasions that the commitments made concerning the indigenous peoples are among those which have been least implemented. The overall balance of the application of the Agreements indicates that most of the actions which were provided for to overcome discrimination and provide to the indigenous peoples the place they should have in the Guatemalan nation, are still awaiting fulfilment. This does not correspond to the changes proposed in the Agreements, but instead favours the persistence of a monocultural and exclusive model." (Unofficial translation, paragraph 9.)

7. While recognizing the complexity of the situation, the Committee nevertheless recalls that the ratification of the Convention was one element in the settlement of the internal conflict in the country which - as indicated in the preamble of the 1996 Peace Agreement -"brought an end to more than three decades of armed confrontation in Guatemala". It therefore urges the Government to renew its efforts to overcome difficulties in the application of the Convention and the Peace Agreements, and to continue to provide information to the Committee on how it is accomplishing this. In doing so, the Committee expresses the firm hope that the Government will comment on the observations made by workers’ organizations in the country, together with the indigenous peoples, and that the Committee will be in a position to note in the near future that concrete measures have been taken to apply the Convention.

The Committee is raising a number of more detailed matters in a request addressed directly to the Government.

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1. The Committee notes with interest the Government's first report referring to deliberations under way on the concrete implementation of the peace accord, and in particular the Agreement on the Identity and Rights of the Indigenous Peoples. It notes that this work is under way with the assistance, among others, of the International Labour Office. The Committee notes, however, that it does not contain detailed information on most of the Articles of the Convention. The Committee is therefore raising at this point only some of the most urgent issues, and hopes to carry out a more detailed examination when it receives a more detailed report on the measures taken or contemplated to implement the Convention.

2. Article 1 of the Convention. The Committee notes that the groups covered by the Convention are those of Maya, Garifuna and Xinca descent, and that they number some 5 million in the country.

3. Articles 4 to 7. The Committee notes that the Joint Committee for Reform and Participation created under the Agreement has within its mandate to study the status and legal capacity of indigenous communities and their authorities, as well as customary law and measures for the defence of their interests, as well as obligatory consultation mechanisms and institutional forms for individual and collective participation in decision-making. As these questions are at the core of the Convention's philosophy, the Committee looks forward with interest to the recommendations of the Joint Committee and the manner in which they are implemented by the Government. Please indicate in the next report any progress achieved in this regard, and if possible send copies of any reports this Joint Committee may have issued, and of any consultation mechanisms put into place as provided for in the Convention.

4. Articles 8 to 12. The Committee notes that the Government is examining the ways in which the customary legal systems of these peoples can be taken into account by the national judicial system, in the different ways covered by these Articles. Since this is an extremely important element both of the application of the Convention and of the implementation of the peace agreement, the Committee would be grateful if the Government would communicate with its next report any results so far achieved in this regard.

5. Articles 13 to 19. The Committee notes from the brief information provided under these Articles that a Joint Committee on the Land Rights of Indigenous Peoples and an Institutional Commission for the Development and Strengthening of Land Rights have been created, and they are drafting legislation and a programme of action on the question of indigenous land rights. It notes with interest the segment of the global peace agreement entitled "Agreement on Socio-economic Aspects and the Rural Situation", which will also affect the implementation of these Articles. In view of the importance of this issue to the consolidation of the peace process, the Committee hopes that this process will move as quickly as possible, and awaits with interest the results of these examinations.

6. Article 25. The Committee notes with interest the detailed information provided on health facilities available for the indigenous peoples of the country.

7. Article 26. The Committee notes also the detailed information on education facilities, as well as the fact that a Joint Committee on Educational Reform has been created under the peace agreement. It looks forward to receiving updated information in this regard with future reports.

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1. The Committee notes with interest the Government's first report following ratification of the Convention, and is addressing a request directly to it asking for more information. The Committee notes, furthermore, the communication sent by the Popular Federation of Peasant Farmers on the application of the Convention, which was received shortly before its session. The Committee hopes that the Government will send detailed comments on this communication to be examined in its next session.

2. The Committee recalls that the ratification of the Convention was one element in the settlement of the internal conflict in the country, which -- as indicated in the preamble of the 1996 Peace Agreement -- "brought an end to more than three decades of armed confrontation in Guatemala". It notes in this respect that the ILO continues to play a part in the implementation of the Peace Agreement, and that considerable technical assistance is being provided from the international community for this purpose.

3. The first report is a brief one, and on a number of questions the Government indicates simply that the mechanisms set forth to implement the Peace Agreement have not yet concluded their work. The Committee requests the Government to report in detail on the progress achieved in implementing the obligations undertaken under the Peace Agreement and the Convention. It looks forward to a more detailed report in reply to its present comments, and encourages the Government to continue working with the assistance of the Office to create the necessary conditions for the Convention's full implementation.