Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

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.]