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

While the controversy has led to some attempts at dialogue, most notably the formation of a high-level commission (including representatives from mining companies and civil society) to advise the Guatemalan government on rewriting its mining law, these have largely failed to resolve the conflict, partly because of a deep distrust among many of the parties involved. In this climate, much of the discussion has centered on technocratic fixes. Reform proposals have tinkered with the royalty rates or advocated new provisions for environmental protection, yet have left unaddressed the more fundamental questions, over which intractable opposition has already claimed lives: who decides what counts as "development"? What are the mechanisms for ensuring the participation of local communities, and what are their limitations?

What lies at stake in these broader debates is not a technical solution to problems of water pollution or royalty rates but a core problem of neoliberal democracy that extends far beyond mining itself: whose interests is economic development designed to serve? Who is empowered to speak on their behalf? These questions are not limited to neoliberal regimes, but their focus on private sector-led initiatives makes the issue of representation particularly acute.

After exploring the various forms of legalization at play in the debate over the Marlin mine, this article returns to this question of democratic power. First, it discusses in detail the legal regimes that relate to this controversy. The central point is that while many observers tout the rise of new corporate governance models, some linked with the work of non- or intergovernmental organizations (see Hemphill 2004; European Corporate Governance Institute 2007), the Marlin case illustrates some of the severe shortcomings of such models.

A Note on Method

The research for this study included primary interviews with key figures in Washington, DC, Guatemala City, and San Marcos, Guatemala, between April and September 2006. The authors spoke with a representative of Glamis Gold, top officials in the Guatemalan Mining and Energy Ministry, a senior specialist in the Ombudsman Section of the Compliance Advisor Ombudsman (CAO) of the IFC, a senior policy adviser at Oxfam America, a former staffer of the Bank Information Center, a specialist at the Guatemalan Human Rights Ombudsman's Office, legal and program staffers at Madreselva and the Guatemalan environmental law organization CALAS, leaders of a Mayan human rights organization, community leaders in the immediate vicinity of the mine, and Bishop Ramazzini of the San Marcos Diocese. In addition to interviews, one member of the research team conducted participant observation over the course of several days in August 2006 at a community consultation on a proposed mining project in Santa Eulalia, Huehuetenango, Guatemala. Concern for the safety of some of these individuals and university human subjects restrictions preclude mentioning them by name or other identifiable attributes.