2011-2018 Constitutional Challenge of Draft Regulation on Indigenous Consultation Processes [Cerro Blanco]

On 23 March 2011,  Guatemala’s Western Peoples’ Council of Mayan Organizations (CPO) brought an action before the Constitutional Court challenging the constitutionality of a draft regulation, entitled “Regulations regarding the Consultation Process under the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries”, which included a 30-day notice period from the date of publication for public comments and proposals on the draft provisions. Upon expiration of the 30-day notice period, the final version of the regulation would be issued. The CPO argued that the draft regulation violated, among other things, indigenous rights, consultation rights, and the principle of due process. The Court allowed the CPO’s action, ordering the government to re-launch its regulatory initiative regarding consultation procedures for indigenous peoples through appropriate means. It further confirmed that the indigenous right to consultation is protected by the Guatemalan constitution. However, some critics argue that the Constitutional Court’s dismissal in 2013 of the CPO’s challenge of amendments to the General Mining Law effectively overturns the constitutional status of indigenous consultation rights (see the Legal Action, entitled “Constitutional Challenges against Guatemalan Mining Laws [Cerro Blanco]”, 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 broaldy, including those of the Xinka Indigenous community in Guatemala. With respect to the Cerro Blanco project site, the current owner, Bluestone Resources Inc., claims that there are no indigenous communities in Asunción Mita. 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. Moreover, while the Court’s decision was not limited to mining operations or the Cerro Blanco mine, the decision had important implications for extractive industries in general, whose projects are often located on or impact indigenous territories. (See the Legal Action, entitled “Community Consultations Processes and Mining Opposition [Cerro Blanco]” for related information).

Note, in September 2018, the issue of indigenous rights to consultation was again considered by the Constitutional Court in a case arising from the suspension of mining licences for the Escobal project. In this decision, the court considered the general scope of indigenous peoples’ rights to consultation. It appears that, despite concerns regarding the 2013 constitutional challenge described above, the court confirmed the constitutional status of this right, along with its recognition in international law. However, it also emphasized that the right to be consulted does not create veto rights. The nature of the right is to be consultative, not binding (consultiva y no vinculante). Its primary goal is to ensure the involvement, participation, and gathering of information from affected communities through administrative or other methods (Constitutional Court, 2018, pp. 145-148, 153).