Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

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.