2008-2018 Constitutional Challenges against Guatemalan Mining Laws [Escobal]

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 implied approval of administrative inaction for longer than 30 days in response to Environmental Impact Assessments; (2) its 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 arose from 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 operations impacted by the impugned provisions of the 1997 Mining Law, including the Cerro Blanco project.

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 entitled “Guatemalan Mining Laws and Amendments [Escobal]“, for more detail). In March 2012, Guatemala’s Western Peoples’ Council of Mayan Organizations (CPO) filed a constitutional challenge to 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 declaring the consultation rights of indigenous peoples to be protected by the Guatemalan constitution. In response to the 2013 decision, the CPO filed a complaint with the Inter-American Commission for Human Rights (See “2013 IACHR Petition filed by Council of Mayan and Xinka Peoples [Escobal]“, for more detail). 

While the CPO represents Mayan indigenous communities, their legal actions at both the national and international level relate to indigenous rights more broadly, including those of the Xinka indigenous community in Guatemala. With respect to the Escobal project, Tahoe Resources Inc. long denied the presence of indigenous communities in the project area. The issue of indigenous consultation rights was addressed in September 2018 by the Constitutional Court, which rejected the company’s position and confirmed a lower court decision suspending the Escobal mining licences, pending immediate consultation by the Ministry of Energy and Mines of local Xinka indigenous populations (See the Legal Action, entitled “2017- Judicial Suspension of Tahoe’s Mining Licences“, for more detail).