2005- Community Consultation Processes [Marlin]

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 Comunitaria, 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 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.

In the Municipality of Sipacapa (one of the municipalities in which the Marlin Mine is located), a community consultation was held on 18 June 2005, pursuant to municipal agreements that were formed under Articles 64 and 66 of the Municipal Code. The municipality took the position that these provisions render the results of any such consultations binding (IACHR Report No. 20/14, Constitutional Court, 2007). However, the Constitutional Court has rejected this position, finding that the nature of these procedures is consultative, not binding (See the Legal Actions, entitled “2005-2008 Constitutional Challenges to Community Consultation Processes brought by Montana Exploradora” and “2011-18 Constitutional Challenge of Draft Regulation on Indigenous Consultation Processes [Marlin]” for more detail).

The community consultation in Sipacapa was held after a series of meetings in 2003 held by Glamis Gold in San Miguel Ixtahuacán and Sipacapa. According to the company, these meetings “attempted to address environmental and other community concerns” prior to the exploitation phase. The community members, however, still believed that “the project was developed without adequate and timely consultation of the local and Indigenous Peoples” and continued with local consultation processes. They were joined by the villages of Huehuetenango and Concepción Tuatuapa in 2006 and 2007, respectively, whose consultation processes resulted in an “overwhelming” consensus against the mine (MICLA).

Notably, in March 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 (Guatemalan Congress, 2018). The following 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 questioned whether a formal law regulating indigenous consultations processes is necessary, noting that there are over 30 decisions of the Constitutional 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 (Western Peoples’ Council of Mayan Organizations (CPO), 2018). 

Despite the 2018 Constitutional Court sentence in the Escobal case  (see Legal Actions entitled “2017- Judicial Suspension of Tahoe’s Mining Licences”) requiring legislators to issue new legislation to regulate the right to consulation of indigenous communities in line with the criteria of its ruling and international norms, as of November 2021 Guatemalan Congress had so far failed to do so as it continued to deliberate on draft texts for a new mining law (BN Americas, 2021).