2017- Judicial Suspension of Tahoe’s Mining Licences

On 5 July 2017, Guatemala’s Supreme Court of Justice temporarily suspended two of Tahoe Resources Inc.’s mining licences pending resolution of a constitutional challenge (amparo) filed against the Ministry of Energy and Mines for discrimination and lack of consultation with indigenous Xinka communities prior to issuing the mining licences for the El Escobal mining project in 2013 (See also the Legal Action entitled “2013 Injunction against granting of Escobal exploitation licence” for more detail). Tahoe continuously denied the presence of Xinka peoples in the mining area. An appeal against the suspension was filed by the Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations (CACIF), resulting in the reinstatement of the licences in September 2017. As part of the reinstatement, the Ministry of Energy and Mines was ordered to carry out a consultation with affected Xinka indigenous communities and report on the consultation within 12 months of the decision.  

The above decision was then appealed to Guatemala’s highest court, the Constitutional Court, by the Centre for Environmental and Socio-Legal Action (CALAS), which was also involved at the earlier stages of this constitutional challenge. In March 2018, the Constitutional Court requested more evidence, including ordering researchers at two Guatemalan Universities, as well as the Ministry of Culture and Sport, to conduct “an anthropological study regarding the presence of Indigenous people in the municipality of San Rafael Las Flores” (MiningWatch Canada, 2018). 

In September 2018, the Constitutional Court issued a 500+ page ruling confirming the suspension of Tahoe’s mining licences pending the completion of consultation processes by the Ministry of Energy and Mines (MEM) with impacted Xinka Indigenous communities. The Court ruling recognised the presence Xinka communities in the area affected by the mine, the failure to conduct consultation with Xinka communities in line with criteria of International Labour Convention 169. The Court also recognised some inadequacies of the Environmental Impact Assessment, and ordered MARN to review certain aspects.

The court recognised the validity of municipal consultation votes (See Legal Action entitled, “2005- Community Consultations Processes [Escobal]“) but confirmed earlier court rulings that provisions of the Municipal Code which provided for local consultations were only advisory for national authorities, such as MEM. It concluded such local consultations under the Municipal Code were not in accordance with the obligation to guarantee the right of indigenous peoples to consultation. This obligation fell to national authorities, in this case MEM, to carry out a consultation proces in line with the criteria of International Labour Convention 169 on the right to free, prior and informed consent.

The court ordered that the consultation be carried out by MEM immediately on the basis of a Court’s guide which was elaborated from the criteria of the ILO Convention and the Inter American System of Human Rights. This included the requirement to conduct a pre-consultation phase of dialogue between representatives of affected Xinka communities, MEM and other institutions regarding the implementation of the consultation process. The court stipulated that “The Xinka people, according to their own selection process, can participate by means of the authorities of the Xinka parliament or choose their representatives according to their own customs, institutions and traditions” (Corte de Constitucionalidad, 2018; 515). However, the Court did not provide a timeline for the completion of these consultations.

In a press release, dated 4 September 2018, the Tahoe Resources advised that it would review the ruling. NGOs supporting the communities reported that, while the court’s decision was welcome, “community leaders fear repressive tactics against environmental defenders will persist as long as the company stays in the area and refuses to respect local decisions against any mining” (Earthworks, 2018).

In March 2019, the Guatemalan Human Rights Ombudsperson’s Office (PDH) opened a administrative process to monitor the implementation of the 2018 Constitutional Court against the MEM. In April 2021, the PDH published its report on the monitoring process setting a number of recommendations to MEM, particularly in relation to ensuring the integrity of the pre-consultation phase of the consulation.

For more information on implementation consultation process, see Legal Action entitled, “2020- Guatemalan Government and the Xinka Parliament initiate pre-consultation over Escobal”