Towards practical application of international conventions

Monday March 24, 2014: The Mayan Council of Sipakapa claimed their collective rights and demanded the cancelation of the mining license, the Chocoyos, in a public hearing in an appellate court in Guatemala City.

– We now demand, with all due respect to this court representing our country, Guatemala, that our rights as an indigenous community – Maya and Sipakapense – will be respected, declared Timoteo Vásquez from the Sipakapense Council.

Sipakapa is a municipality in the northwestern highlands of San Marcos, counting with 18 000 inhabitants and a property title guaranteeing the collective ownership of their territory.

It was on the 30 of april, 2012, that the General Director of the Ministry of Energy and Mines granted the mining company Entre Mares S.A. a prospecting permit without prior information and consultation with the people of Sipakapa. Since then, Entre Mares has the permission to study, analyze and evaluate any metals such as, gold, silver, nickel, cobalt, lead and zinc within the region.

– We have sought legal ways because we want to avoid other regrettable actions, like what happened a while ago when a peaceful demonstration was conducted, and one of the workers from the mining company reached out for his weapon and hurt one of our friends, recounted Vásquez from the Maya Sipakapense Council.

No representative from the Ministry of Energy and Mines was present in court, whereas the mining company, Entre Mares S.A., was represented by the lawyer Ignacio Andrade, who declared:

– The party that filed the appeal does not fulfill two mandatory requirements, there is no direct injury, meaning that the appealing party is not affected as individuals, and there is lack of finality, which means that there were mistakes made in the administrative procedures prior to filing the appeal.

The attorney, Judith Rodas Morales from the Public Ministry, stated:
– We consider violations of article 66 of the Constitution, regulating the recognition of the indigenous people, the respect for their rights and the ILO Convention 169, regulation the right to be consulted. More specifically, the government made an administrative decision that harmed the interests of the indigenous communities. It was also a decision violating the right to prior consultation.

In 2005, the Sipakapense people organized one of the first community consultations on mining in Guatemala. In this 99 per cent of the population agreed not to accept any mining prospecting or exploitation in their territory.

– The people of our community is waiting for this resolution. In the meantime, we will have to continue struggling, because this is about our home, where we eat and from where we get our food in order to survive. For us, Montana (the mining company) does not represent development, said Timoteo Vásquez from the Sipakapense Council.

Vásquez concluded:
– We rely on you (the judges) and that you will give a verdict based on the values of justice, truth and equality.

The appeal filed by the Sipakapense community is one of seven appeals filed by different Mayan groups articulated through the Mayan People Council (CPO), all claiming violations of the indigenous communities’ collective rights. More specifically the right to participation, consent and consultation on any issues regarding mining activities in their ancestral collective territory.

The first appeal was filed in October 2012, and so far five of seven have reached a sentence in the first court, three in favor. All sentences have been appealed. The Ministry of Energy and Mines allege that they obey the law that declare as national urgency to attract investments to the country. The corporations in their turn allege that they have fulfilled all legal requirements to obtain the licenses and therefore must not loose them.

There has been a halt in approval of licenses and since June, 2013 the Ministry of Energy and Mining has not approved one license.

– There are 390 licenses awaiting approval. The country counts with 107 prospecting permissions and 21 licenses for exploitation up to date, says Teresa Fuentes, from the legal commission of CPO, who keeps track on the licenses registered at the Ministry of Energy and Mines, demanding statistics on a monthly basis.

The number of licenses accounts for those concerned with chemical extraction of metals.

Fuentes continues:
– On one hand there is no movement, but on the other hand we know that the mining companies complete their environmental studies and other procedures in order to fulfill all requirements in the process, continues Fuentes.

– So there is no doubt the permissions will be granted at some point, we just do not know when.

Apart from the appeals filed in national courts, the CPO filed a petition with the Inter-American Commission on Human Rights (IACHR) in September 2013, alleging that the country’s mining law was approved without their prior consultation as required under both national constitution and international law.

– In 2012 we filed a petition to the Constitutional Court (CC) arguing that the mining law is unconstitutional. The CC did not agree and therefore the IACHR is our last resort to halt violations of our rights as a result of current mining legislation, says Udiel Miranda, legal coordinator for CPO.

CPO states that the legal actions taken over the past two years are aimed at ensuring that the state laws comply with international conventions.

– We have identified that many of our rights as indigenous communities, that have been violated, actually are protected both by our constitution and by international conventions. Now we want to ensure they are put into practice too, and if not, we have to change the rules of the game in order to make sure our rights are respected, says Nim Sanik, member of the coordination of CPO.

Facts
CPO is the political articulation of the Mayan people, based on the legitimate and organized Mayan authorities and institutions. CPO articulates the decisions and the direction for political actions in defense of the Mayan people’s territory and in defense of their rights. Priority is given to make sure that international conventions, such as ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous People, are applied in Guatemala.

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Article published on cpo.org.gt del Consejo del Pueblo Maya

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