Indigenous Rights, Resistance, and the Law: Lessons from a Guatemalan Mine

Latin American Politics and Society, Winter 2008 by Fulmer, Amanda M, Godoy, Angelina Snodgrass, Neff, Philip

ABSTRACT

Using a case study of a controversial mine in an indigenous area of Guatemala, this article explores the transnational dynamics of development and regulation of large-scale extractive industry projects in the developing world. It examines the roles played in the Marlin mine dispute by national law, international law, international financial institutions, and corporate social responsibility. It concludes that these legal regimes have a role in protecting human rights but have not addressed the fundamental questions of democratic governance raised by this case.

In January 2005, thousands of Mayan peasants descended on a cross-roads of the Pan-American Highway at Los Encuentros, Guatemala, to block the passage of a convoy headed for rural San Marcos. The convoy carried a milling cylinder for use in the Marlin mine, a $250 million project of the Canadian company Glamis Gold.1 The project was backed by the Guatemalan government and the World Bank, yet controversial among the impoverished indigenous communities in which it was established.

The indigenous farmers and villagers at Los Encuentros insisted that mining was not welcome in the highlands and threatened to push the cylinder off a cliff. A tense standoff ensued as the equipment waited on the roadside for days under the eyes of police and protesters alike. National authorities, including President Oscar Berger, insisted on the need to enforce the rights of investors (Solano 2005), while local leaders insisted, "we shall not let them pass" (Solano 2005, 112). Eventually, hundreds of police and soldiers were called in to escort the equipment on its way. As protesters mobilized to block passage, shots were fired. The cylinder made its way to San Marcos, but in its wake Ra�l Castro, a protester, lay dead, and 16 protest leaders, among them the indigenous mayor, were accused of terrorism (Solano 2005, 112).

This episode occurred in the context of a many-year dispute over the Marlin mine, which began when the project was in its early planning stages. Although the violent encounter drew particular attention in the press, the incident was hardly the only conflict to erupt; nor was the Marlin mine the first major project in Guatemala to provoke such heated controversy. The mobilization of indigenous Guatemalans to stave off unwelcome "development" initiatives is nothing new; sadly, neither is the spilling of blood in the process.2 The clearest illustration of this propensity for tragedy when development plans are conceived in the context of endemic structural violence and state repression is the construction of the Chixoy Dam, a World Bank-funded hydroelectric project carried out in the 1980s despite opposition from Mayan populations whose lands were flooded in the process. This opposition was decried as subversion by a virulently anticommunist government, and numerous communities were slaughtered in a series of brutal massacres by state forces and their paramilitary adjuncts (Chen 2007).

Fortunately, the current controversy over mining unfolds in a profoundly different context. Guatemala is no longer embroiled in a civil war, and while most of the socioeconomic problems that fueled the conflict have yet to be systematically addressed, it would appear that human rights advocates today enjoy an unprecedented array of instruments and institutions to use to prevent the kinds of abuses that characterized past controversies. The Marlin case would appear a textbook example of multisited global governance regimes, as the "development" in question has been proposed and contested through transnational civil society mobilization; national and international human rights litigation; the use of international institutions, such as the International Labour Organization; voluntary protocols; and other forms of corporate social responsibility, along with increased monitoring and involvement by funding agencies, such as the World Bank.

Yet if this is the textbook example, the lesson is far from encouraging. Through an examination of the recent proliferation of laws and regulatory regimes relevant to this case, this article argues that, perhaps ironically, this remarkable new confluence of overlapping laws, institutions, and initiatives adds up to less than the sum of its parts. In a climate in which national governments exercise less, not more, ability to regulate financial flows and the operations of corporations in their territory (Stiglitz 2006), this proliferation of laws and lawlike principles creates a set of shifting authority structures and subjective norms. Without clear directives as to how and when they are to be implemented, more mechanisms for accountability have only added to the confusion, creating a haphazard collection of lawlike artifices that ultimately amount to a Rorschach "inkblot" test of social responsibility, in which the meaning of laws shifts according to the onlooker's subjective perception.3

WHAT IS AT STAKE IN THE MARLIN MINE

The controversies surrounding the Marlin project involve numerous issues and an array of diverse actors. The case has marked a number of historic "firsts."4 It was the first mining project authorized by the Guatemalan government following the passage of a 1997 mining law designed to attract foreign investment. At the time, it was touted as the largest mineral deposit of its kind in Central America and held up as an example of the country's new development prospects as it entered the postwar period (Solano 2005, 110). In 2004, two years after the Guatemalan mining ministry awarded the rights to the project to Glamis Gold, the International Finance Corporation (IFC), the private sector lending arm of the World Bank, pledged the project a $45 million loan; it was the first loan undertaken by the agency following a thorough internal review of past projects' failure to produce sustainable development outcomes. For the Guatemalan government, for Glamis Gold, and apparently for the IFC, the Marlin project promised new hope for rural Guatemala: not only would the project create jobs in one of the country's poorest and most excluded areas, but the company had put together an unusually generous package of incentives, including payment of some local schoolteachers' salaries, construction of local roads, and the creation of a corporate-funded foundation to finance community development initiatives.