2005- Community Consultation Processes [Cerro Blanco]

Between 2005 and 2016, approximately 80 community consultations (consultas comunitarias), also known as popular consultations (consultas populares or consultas), were held across Guatemala, resulting in a large majority of citizens voting against mining and other commercial activities in their territories (Ardon, 2016). The “consulta movement” in Guatemala began in 2005 in response to a hydroelectric project in Río Hondo, Zacapa, and was quickly adopted by communities affected by the Marlin Mine (Laplante & Nolin, 2014). Communities turned to the consulta process as a democratic and peaceful mechanism for participating in decision making relating to projects affecting their communities (Guatemala Communitaria, 2016). The process is based on national laws, such as the Guatemalan Municipal Code, and the rights of consultation and participation enshrined in international instruments, such as the International Labour (ILO) Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, the International Covenant on Civil and Political Rights, and the United Nations Declaration on the Rights of Indigenous Peoples (ibid). In particular, the ILO Convention No. 169 requires that contracting states (including Guatemala) obtain free, prior and informed consent (FPIC) from affected communities before proceeding with commercial activities on or impacting their territories, and that the process for obtaining such consent should follow customary procedures (Walter and Urkidi, 2016).

In some instances, for example, consultas relating to the Marlin Mine and Escobal projects, the process is also governed by indigenous law and community governance structures, and has been described as “indigenous direct democracy” (Imai, 2007; Abott, 2014; NISGUA, 2016). According to Professor Shin Imai, “[f]rom the Indigenous perspective, the authority and jurisdiction to act does not arise from Guatemalan legislation. The authority arises from the inherent rights that come with being an Indigenous people” (Imai, 2007). Some reports indicate that the Guatemalan government has “made little effort to listen to the community’s concerns and decisions” as expressed through the consulta process and, in some instances, taken “steps to limit the right of the consulta” (Abott, 2014). While the results of community consultation processes must be taken into account, the Constitutional Court recently confirmed that they (consultas populares) are not binding on the government, nor do they grant veto powers to affected communities (Corte de Constitutionalidad, 2016). Nonetheless, indigenous and other community organizations have and continue to rely on legally recognized consultation and participation rights to challenge the validity of mining licences across the country.

Notably, in April 2018, the Labour Commission of the Guatemalan Congress announced that it would begin analyzing a draft bill on proposed procedures for consultation with indigenous peoples. The same month, the Western Peoples’ Council of Mayan Organizations (CPO) announced that it had started an action before the Constitutional Court challenging this bill for, among other things, violating indigenous rights to consultation and self-determination. The group questions whether a formal law regulating indigenous consultations processes is necessary, noting that there are over 30 decisions of the Consitutional Court that establish that the non-existence of this type of law is not an obstacle for compliance with the right to consultation by state officials. At the time of writing (September 2018), no new developments on this case have been reported.

With respect to the Cerro Blanco project, the first community consultation in the department of Jutiapa (where the project is located) was held in 2016 – three years after Goldcorp Inc. had suspended the project. The community consultation was held in the municipality of Quesada, in which 99% of participants voted against the mining project in the area. The project has since been sold to Bluestone Resources Inc., which is in the process of completing its feasibility studies. The company states that “there are no indigenous groups living around the [Cerro Blanco] project”, relying on this position to argue that the political risk for its project is lower than that of similar projects, such as Escobal. However, according to an interview conducted as part of The Legal Cultures of the Subsoil project with the Asunción Mita Neighbours Association for the Defence of Life, Water, and Nature (Avedevida), there are members of the Xinka Indigenous community living in Asunción Mita, though they are not believed to be a large portion of the population.