2008-2013 Constitutional Challenges against Guatemalan Mining Laws [Marlin]

On 19 June 2008, the Constitutional Court of Guatemala declared seven provisions of the 1997 Mining Law unconstitutional based on a failure to comply with Guatemala’s environmental laws. In particular, the court agreed with the Centre for Environmental and Socio-Legal Action (CALAS) that the following aspects of the Mining Law breached the state’s obligation to protect the environment: (1) the fact that administrative inaction for longer than 30 days in response to Environmental Impact Assessments amounted to implied approval; (2) the permissiveness regarding the release of contaminated waters from mining activities; and (3) the Mining Law’s requirement that companies mitigate waste and noise only to the “extent possible” (Abate and Aldana, 2015). This constitutional challenge was filed in response to the social conflict, environmental concerns, and lack of government engagement with community representatives in the approval and granting of licences for the Marlin Mine project (Human Rights House Foundation, 2012). However, the Court’s findings applied broadly to all mining operations, including the Cerro Blanco project, impacted by the provisions of the 1997 Mining Law that the Court ruled unconstitutional.

Indeed, following this decision, the government instituted a moratorium on all new mining licences until amendments could be made to the Mining Law. The moratorium was lifted in 2012 following the introduction of legislative amendments by the Guatemalan government (see Legal Action, titled “1997-2015 Guatemalan Mining Laws and Amendments [Marlin]“, for more detail). In March 2012, Guatemala’s Western Peoples’ Council of Mayan Organizations (CPO) filed a constitutional challenge of these amendments, arguing that the new law violated their rights as indigenous peoples to be consulted with respect to mining activities impacting their territories. The Constitutional Court released a decision upholding the mining law in 2013. Some groups considered this decision to be a reversal of a 2011 Constitutional Court decision which declare the consultation rights of indigenous peoples to be protected by the Guatemalan constitution (see “2011-2018 Constitutional Challenge of Draft Regulation on Indigenous Consultation Processes [Marlin]” for more detail). In response to the 2013 decision, the CPO filed a complaint with the Inter-American Commission for Human Rights (see “2013 Petition to IACHR filed by Council of Mayan and Xinka Peoples [Marlin]” for more detail). 

The CPO represents Mayan indigenous communities in Guatemala. As such, their legal actions at the national and international level have a direct impact on the Marlin Mine project, as the municipalites surrounding the mine (San Miguel Ixtahuacán and Sipacapa) are “predominantly Mayan (the majority in San Miguel being Maya Mam, and the majority in Sipacapa being Maya Sipakapense)” (MICLA). Their actions also relate to indigenous rights more broadly, including those of the Xinka indigenous communities, which are impacted by the Escobal mining project.