2018- Draft Bill on Indigenous Consultation Procedures and CPO Constitutional Challenge

In March 2018, the Labour Commission of the Guatemalan Congress announced that it would begin analyzing a draft bill on proposed procedures for consultation with indigenous peoples (Guatemalan Congress, 2018). The following month, the Western Peoples’ Council of Mayan Organizations (CPO) announced that it had started an action before the Constitutional Court challenging this bill for, among other things, violating indigenous rights to consultation and self-determination. The group questions whether a formal law regulating indigenous consultations processes is necessary, noting that there are over 30 decisions of the Constitutional Court that establish that the non-existence of this type of law is not an obstacle for compliance with the right to consultation by state officials (Western Peoples’ Council of Mayan Organizations (CPO), 2018). 

The draft bill arose from a history of national and international decisions criticizing the lack of formal procedures for consulting with indigenous peoples prior to the approval of development projects, such as mining projects. The Constitutional Court summarized this history in a 2017 decision involving two hydroelectric dam projects owned by Guatemalan companies, Oxec S.A. and Oxex S.A. II. In this decision, the court emphasized that the creation of a special law regulating internal consultation processes is one of Guatemala’s obligations under the ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, noting that this position had also been expressed by the Inter-American Commission on Human Rights, the U.N. Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People and repeatedly by the International Labour Organization (See the Legal Actions, entitled “2007- IACHR petition and precautionary measures regarding Marlin Mine authorization and Mayan communities“, “2011 Country Visit by the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People“,  and “2010-2015 ILO Criticizes Guatemala on Mining and Indigenous Communities [Marlin]“, for more detail). 

The court added that it had been nearly ten years since the release of its first decision on this issue, which it considered a sufficient and reasonable amount of time for the government to have established a legislative framework for consultation procedures with indigenous peoples. It concluded by finding that the failure on the part of the National Congress to develop these procedures had contributed to a climate of distrust among indigenous peoples who are adversely affected by development projects and their investors. The lack of clarity regarding the scope of the right to consultation similarly impacts the rights of those investors that take on the financial risk of investing in the country. Accordingly, the court ordered the creation of general policy guidelines establishing the applicable standards for complying with indigenous rights to consultation (Constitutional Court, 2017).

While this decision was released shortly before the closure of the Marlin Mine project, it and another key ruling by the Constitutional Court in 2018 (See Escobal project) have important implications for the consultation rights of all indigenous peoples in Guatemala. Moreoever, these rights continue to be at issue during the closure and reclamation processes for mining projects. 

At the time of writing (October 2021), despite various initiatives by the Guatemalan Congress to introduce legislation to regulate consultation procedures, this has not resulted in a new law in line with Constitutional Court rulings.