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

Moreover, even in cases in which the Ministry of the Environment has ordered the closure of corporate operations, the government has failed to enforce these decisions. The most notable case is that of Duke Energy, which the Guatemalan government ordered to close its electric plant in December 2003 because of high levels of noise pollution. Duke chose to ignore the order and, as of this writing, the plant continues to operate (Morales 2006; Ram�rez 2003). This calls into question the power of the local authorities to take action against foreign corporations on environmental grounds.

Local Participation

Guatemalan mining law has never satisfactorily addressed the question of local communities' participation in decisions regarding their own development. Such a right has been internationally recognized for indigenous communities in Convention 169 of the International Labor Organization. No implementing legislation has been passed in Guatemala to incorporate ILO 169 into national law, however, and while the Guatemalan state is legally bound by this convention, national law at this point has no clear legal mechanism through which violations may be prosecuted. Recent reforms intended to decentralize decisionmaking have begun to incorporate the concept of consultations into national law, but in an incoherent manner, creating a climate of confusion and contradiction and a vacuum of legal authority.11

At present, Guatemalan law contemplates at least five vehicles for community consultation, from national referendums on "political decisions of special transcendence" to plebiscites convened by local authorities in response to expressions of concern by residents. Yet no clear definition exists of when each type of consultation should be applied. On the question of mining, this lack of specificity becomes particularly problematic: while the constitution itself establishes in article 121 the national state's ownership of subsoil resources, and in article 125 its responsibility to exploit these in the public interest, laws regarding decentralization and municipal autonomy permit consultative processes on such matters as local populations deem relevant without specifically limiting these to matters within municipal government purview. This leads to legitimate confusion over the limits to local decisionmaking authority. While opponents of mining assert that populations have complied with the terms of laws regarding local consultation, the Ministry of Energy and Mines considers the exploitation of subsoil resources beyond the jurisdiction of local communities, and therefore deems these processes legally irrelevant (G�lvez Sinibaldi 2006).

Given the lack of a national law on consultations, both arguments would appear to have merit. On the one hand, the mining law clearly establishes that such resources are to be regulated by national authorities in consultation with local development councils. While the constitution mandates municipal autonomy, it is not absolute but administrative (see art. 253), and subsoil resources are established in article 121 as property of the national state, not of each municipality. At the same time, laws governing consultative processes allow referendums on virtually any issue of concern to the citizenry and establish conditions under which the results of these processes are considered binding. It would appear that in at least some of the mining consultations that have resulted in overwhelming rejection of mining, such conditions have been fulfilled. Absent a national law regulating participation processes, the question of whether such referendums are legally binding ultimately rests on which body of law one considers most convenient to cite. The Guatemalan Constitutional Court recently declared the community-run consultation in Sipacapa nonbinding (Sieder 2006; P�rez 2007). The court's ruling, while casting a definitive judgment on the particular consultation in question, did little to clarify the broader issue of how consultations can legally proceed; it merely stated that clearer rules ought to be established.