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

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 peoples’ right to consultation is protected by the Guatemalan constitution.

However, some critics argue that the 2013 Constitutional Court decision to dismiss the CPO’s legal challenge to amendments to the General Mining Law effectively overturns the constitutional status of indigenous peoples right to consultation (see the Legal Action, entitled “2011-2018 Constitutional Challenges against Guatemalan Mining Laws“, for more detail). 

While the CPO represents Mayan Indigenous communities, their legal actions at both the national and international level relate to indigenous peoples’ rights more broadly, including those of the Xinka indigenous community in Guatemala. With respect to the Escobal project, Tahoe Resources long denied the presence of indigenous communities in the project area. This issue 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 with local Xinka indigenous populations. The Court also 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, the Court’s ruling emphasized that the right to be consulted does not create veto rights. According to the Court, the nature of the right is to be consultative, not binding (consultiva y no vinculante). Its primary goal is to ensure involvement, participation, and information from affected communities through administrative or other methods (Constitutional Court, 2018, pp. 145-148, 153) (See the Legal Action, entitled “2017- Judicial Suspension of Tahoe’s Mining Licences“, for more detail).