2011-2018 Constitutional Challenge to Draft Regulation on Indigenous Consultation Processes [Marlin]

On 23 March 2011, Guatemala’s Western Peoples’ Council of Mayan Organizations (CPO) brought a legal action (amparo) before the Constitutional Court challenging the constitutionality of a draft regulatory law. The draft bill was 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 ruled in favour of 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 argued that the Constitutional Court’s subsequent dismissal in 2013 of the CPO’s constitutional challenge to amendments of the General Mining Law effectively overturned the constitutional status of indigenous consultation rights (see the Legal Action, entitled “1997-2015 Guatemalan Mining Laws and Amendments [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. Moreover, the Court’s decision was not limited to either mining operations or the Marlin mine, as such it had important implications for extractive industries in general, whose projects are often located on or impact indigenous territories. (See the Legal Action, entitled “2005- Community Consultation Processes [Marlin]” for related information).

Note that 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 Escobal mining licences. In this decision, the court considered the general scope of indigenous peoples’ rights to consultation. 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).