2013 Injunction filed against granting of Escobal exploitation licence

In April 2013, the Ministry of Energy and Mines (MEM) granted Tahoe Resources, through its wholly-owned subsidiary, Minera San Rafael, mining licences in relation to the Escobal mining project. Members of the Xinka indigenous community, as well as other affected residents, had opposed the company’s application for mining licences since November 2010. In 2012 and 2013, more than 250 administrative complaints against the project were filed with MEM, citing (among other issues) environmental and consultation concerns. Immediately prior to MEM’s decision to grant the licences, the complainants were informed that their concerns would not be considered. As a result, in May 2013, a representative of the Xinka Parliament, with the support of Centre for Environmental and Socio-Legal Action (CALAS), filed an injunction petition (amparo) to reverse MEM’s decision to grant the licences. The injunction petition was also supported by the Xinka Parliament as a whole, the San Rafael Las Flores Committee in Defense of Life and Peace, and the Santa Rosa Diocese Council for the Defence of Nature (CODIDENA). The appellant claimed there was a “lack of due process regarding a complaint he filed against the company’s license” prior to the April 2013 MEM approval (NISGUA, 2013), and referred to hundreds of other complaints filed by members of the community that MEM had rejected.

In July 2013, the Civil and Mercantile Division of Guatemala’s First Court of Appeals granted the injuction against the decision of the Director of Mining of MEM, “putting the legality of the Escobal exploitation license in question” (NISGUA, 2015). Minera San Rafael unsuccessfully appealed this decision to the Constitutional Court, sustaining the lower court’s ruling that the MEM process granting the licence violated the plaintiff’s constitutional rights. The Constitutional Court ruling recognized the fundamental nature of the right to a healthy environment, drawing on international instruments, such as the Additional Protocol to the American Convention on Human Rights on the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), to interpret MEM’s obligations under Guatemala’s General Mining Law (Constitutional Court, 2015). However, the injunction ruling which invalidated the decision to grant the mining licences was never enforced. MEM and Tahoe Resources argued the ruling was solely against the Director of Mining, rather than the decision itself and the Public Prosecutor’s Office took no measures against MEM officials for failure to comply with the Constitutional Court ruling.   

Prior to the appeals court granting the injunction in 2013, CALAS also “filed criminal complaints against former Minister of [MEM], Erick Archila, and former mines director at MEM, Fernando Castellanos” (NISGUA, 2015). The complaints “accus[ed] Archila and Castellanos of violating the Constitution and for breach of duty for having granted Tahoe Resources an exploitation license for the Escobal project without adequate consideration of more than 250 community complaints against the project” (Ibid). CALAS also “called on the UN-backed International Commission Against Impunity in Guatemala (CICIG) to fully investigate the Escobal licensing process, citing Archila’s possible involvement in influence trafficking and illicit enrichment” (Ibid). Despite these serious allegations, the authorities did not conduct a substantive investigation into the licencing process of Escobal mine or enforce the judicial injunction. For details relating to other legal actions impacting the status of the Escobal mining licences, see the Legal Action entitled “2017- Judicial Suspension of Tahoe’s Mining Licences“.