Guatemala: mining law and the rights of indegenous people

On July 20 the Maya and Xinca people, joint together in the Consejo de Pueblos de Occidente (Western Villages Council), presented their arguments for the general and total unconstitutionality of the Mining Law, contained in Decree 48-97, in a hearing before the Constitutional Court of Guatemala.

On March 12, 2012, the Consejo de Pueblos de Occidente filed a legal action challenging the constitutionality of the Mining Law, claiming that the approval of this law did not respect neither guarantee the right to consultation of the indigenous peoples. FIAN International, an international organization for the right to food, submitted to the Constitutional Court a legal analysis (amicus curiae) stating that the Mining Law violates several regulations and principles of international human rights contained in international instruments ratified by the State of Guatemala, and that are also part of its domestic law.

The legal analysis indicates that the State of Guatemala has the obligation to respect, protect and fulfil the rights of the indigenous people when implementing development or investment plans and projects, or when granting extractive concessions in ancestral territories. These rights include: the right to a safe and healthy environment, the right to prior consultation, and in some cases, the right to informed consent, the right to benefit sharing and the right to redress. The current mining law does not take into consideration any of these rights. According to official sources, since the enactment of the Mining Law in 1977 to date, a total of 398 mining licenses have been granted. Two-hundred-sixty-two of these mines are already in the exploration phase. The majority of these licenses are located in the states where indigenous communities live. Said mining projects have affected the environment and have caused multiple human rights violations in the indigenous communities that have inhabited said territories since ancestral times.

The former United Nations Special Rapporteur on the rights of indigenous peoples, Rodolfo Stavenhagen, pointed out that the present condition of the indigenous populations in Guatemala is the result of the long colonial oppression process against the Mayan people as of the XVI century, consolidated under the liberal national government during the XIX century, upon the constitution of a governing class that based its power on large rural land property and the exploitation of indigenous labor, within the framework of authoritarian and patrimonial regimes. The organizations signing below urge the Constitutional Court of Guatemala to consider the human rights obligations that the State of Guatemala must fulfill as it resolves the legal action presented.

Center for International Environmental Law
FIAN International
Mining Watch Canada
Dutch Platform Against Impunity

Read the amicus curiae sent to the Constitutional Court of Guatemala in Spanish (pdf)

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