Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

The Committee notes the Government’s report received in August 2014 which includes observations from the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF). It also notes the communication of September 2014 in which the International Organisation of Employers (IOE) included Guatemala in its observations on the application of the Convention. In addition, the Committee notes the observations made by the Trade Union of Workers of Guatemala (UNSITRAGUA), of 28 August 2014, the observations of the Guatemalan Union, Indigenous and Peasant Movement (MSICG), of 29 August 2014, and of the General Confederation of Workers of Guatemala (CGTG), of 1 September 2014. The Committee requests the Government to provide its comments in this respect.

Article 3 of the Convention. Human rights. In the alternative report prepared by the Council of Mayan Organizations of Guatemala (COMG), forwarded in December 2012 by the Central Confederation of Rural and Urban Workers (CCTCC), reference was made to the events of 4 October 2012 in a social protest held in Totonicapán, which resulted in the death of eight indigenous persons and 35 injured persons. The Government provides detailed information from the Office of the Public Prosecutor and its office for the District of Totonicapán identifying those who are being prosecuted and have been charged with crimes committed during the events. In light of the concerns expressed by the indigenous organizations and the gravity of the events, the Committee requests the Government to indicate the measures adopted to avoid force and coercion being used in violation of the human rights and fundamental freedoms of indigenous peoples. Please provide updated information on the court cases relating to the events in Totonicapán and the rulings handed down in relation to the persons prosecuted in this case.

Articles 6 and 7. Appropriate consultation and participation mechanism. With reference to its previous comments, the Government provides information on the exchanges between representatives of indigenous authorities from some municipal areas in the department of El Quiche and the other consultation meetings held during 2014. The Government indicates that, as a result of these exchanges and consultations, a draft protocol has been prepared to implement the right of indigenous peoples to prior consultation. This document was submitted to the Tripartite Committee for International Affairs on 8 May 2014 so that the social partners could make their comments. The Committee notes that in August 2014 the Government has still not received the comments of the social partners. The Committee also notes the indications provided by the Constitutional Court in the Government’s report relating to the recognition of the right of consultation of indigenous peoples. The Constitutional Court explains the scope of its decisions concerning consultations and indicates that in certain cases the outcome of such consultations may not be binding. The Committee notes that the rulings of the Constitutional Court are binding on the public authorities and State bodies. The Committee hopes that a constructive dialogue is continuing in the country for the establishment of an appropriate consultation and participation mechanism. The Committee requests the Government to continue providing information on the results achieved, with the participation of representative bodies of indigenous peoples, to develop suitable means of regulating prior consultations.

Articles 6, 7 and 15. Consultation. National resources. Project for the construction of a cement plant in the municipality of San Juan Sacatepéquez (department of Guatemala). With reference to the comments that the Committee has been making since 2008, the Government recalls that the Constitutional Court in case No. 3878-2007, in its ruling of 21 December 2009, ordered the holding of the consultations required by the Convention on matters affected by the construction of a cement plant by Cementos Progreso. In this respect, the Committee notes the detailed information added to the report by the CACIF in relation to the project. The Committee expresses appreciation of the detailed documentation provided by the CACIF on the dialogue held in June 2014 between the representatives of the 12 communities of San Juan Sacatepéquez and the President of the Republic, accompanied by other national authorities. The agenda of the dialogue included the construction of a road in relation to the cement plant, the installation of a military brigade in the area and concerns relating to the criminalization of members of communities who complain about the project for the construction of the cement plant. The Committee notes the documentation provided by the enterprise Cementos Progreso on the structure of dialogue at the municipal level to facilitate negotiations at the local and community levels. The Committee notes the information that the enterprise has undertaken social investment projects and the technical documentation on the monitoring of air, noise and water captured in the area affected by the cement plant project. The enterprise indicates that it is aware of the divergent opinions concerning the project and guarantees that the construction process will be carried out in compliance with the legislation and with high production standards, and particularly in accordance with the priorities, interests and property of its neighbours. Under these conditions, the Committee reiterates the requests made in its previous comments concerning the solutions proposed to ensure that a cement factory established in the area takes into account the interests and priorities of the affected Maya Kaqchikel communities, and that there are no harmful effects on the health, culture and property of those communities. The Committee reiterates its request for all the parties concerned to refrain from any acts of intimidation and of violence against persons who do not share their views on the project. The Committee invites the Government to provide information in its next report on developments in the good faith negotiations held in accordance with the Convention relating to the cement plant project.

Mining concessions and hydroelectric projects. The Committee notes a document focusing on the Ixil, K’iche, Q’eqch’ and Uspanteco Maya peoples and territories in the department of El Quiche, prepared by the Asociación Tejedores de Vida, which was submitted by UNSITRAGUA. The Committee notes the concern expressed by the MSICG and UNSITRAGUA relating to the social conflict caused by the imposition of hydroelectric and mining projects without the required prior consultation with the indigenous communities affected. The Committee also notes the ruling of the Constitutional Court in case No. 4419 2011, dated 5 February 2011, examining, among other matters, the lack of consultation during the procedure for the authorization of operations by the hydroelectric industry. In the comments that it has been making for several years, the Committee has requested the Government to provide updated information on the consultations and participation by indigenous communities in the benefits deriving from the mining activities of the Marlín mine in San Miguel Ixtahuacán (department of San Marcos) and the mining of nickel and other minerals in the territory of the Q’eqchi people in the municipality of El Estor (department of Izábal, see also GB.299/6/1, November 2007). The Committee observes that the Government’s report does not contain information on that issue. The Committee refers to its previous comments and urges the Government to provide updated information on consultations with the indigenous communities affected and their participation in the benefits deriving from the mining activities in the Marlín and El Estor mines. The Committee reiterates its interest in examining information on the measures taken in practice to bring the Mining Act and other relevant legislation, and particularly the General Electricity Act, into conformity with the requirements concerning prior consultation and participation in benefits set out in the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2016.]