Communities of the Sipakepense and Mam Mayan People

Communities of the Sipakepense and Mam Mayan People

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REPORT No. 20/14

PETITION 1566-07

ADMISSIBILITY

COMMUNITIES OF THE SIPAKEPENSE AND MAM MAYAN PEOPLE

OF THE MUNICIPALITIES OF SIPACAPA AND SAN MIGUEL IXTAHUACÁN

GUATEMALA
April 3, 2014

I.SUMMARY

  1. On December 11, 2007, the Inter-American Commission on Human Rights (hereinafter “Inter-American Commission,” “Commission,” or “IACHR”) received a petition lodged by 13 communities of the Sipakepense Mayan people in the municipality of Sipacapa, Department of San Marcos[1] (hereinafter “petitioners”) against the State of Guatemala (hereinafter “Guatemala,” “State,” or “Guatemalan State”). Subsequently, the municipal mayors of Sipacapa and San Miguel Ixtahuacán asked to join as petitioners on behalf of the communities of the Sipakepense Mayan people and the communities of the Mam Mayan people in their respective municipalities (hereinafter “alleged victims”), a matter that was deemed in order by the Commission and that was notified to the parties.
  1. The petitioners allege that the State authorized the Marlin Mine I project without prior, free, and informed consultation with the affected indigenous communities and, further, that the negative outcome of a consultation that the communities themselves called for were not taken into account, which the petitioners claim has had had serious consequences for the communities. They maintain that the State is responsible for violating Articles 8 (right to a fair trial), 9 (freedom from ex post facto laws), 11 (right to privacy), 13 (freedom of thought and expression), 19 (rights of the child), 21 (right to property), 23 (right to participate in government), 24 (right to equal protection), 25 (right to judicial protection), and 26 (progressive development) of the American Convention on Human Rights (hereinafter “Convention” or “American Convention”), in relation to Articles 1.1 (obligation to respect rights) and 2 (obligation to adopt domestic measures) thereof, to the detriment of the alleged victims. Likewise, they request that Convention 169 of the International Labour Organization concerningIndigenous and Tribal Peoples in Independent Countries (hereinafter “Convention 169 of the ILO”), ratified by Guatemala, be used as a guide for interpreting the conventional obligations. As concerns admissibility, they argue that domestic remedies were exhausted with the decision of the Constitutional Court issued in the action of unconstitutionality challenging the holding of the consultation authorized by the Municipal Council of Sipacapa.
  1. For its part, the State has filed three preliminary objections concerning the fourth instance, the failure to exhaust domestic remedies, and res judicata. Further, it challenges the facts and the violations denounced. Therefore it requests that the petition be found inadmissible.
  1. Without prejudging the merits of the case, after examining the positions of the parties and pursuant to the requirements in Articles 46 and 47 of the American Convention, the Inter-American Commission decides to find the petition admissible for the purpose of examining the alleged violation of the rights enshrined in Articles 5, 8, 9, 13, 19, 21, 23, 24, and 25 of the American Convention, in relation to Articles 1.1 and 2 thereof, to the detriment of the alleged victims. The Commission decides to notify this decision to the parties, publish it, and include it in its Annual Report to the General Assembly of the Organization of American States.

II.PROCESSING BY THE COMMISSION

  1. On December 11, 2007, the Commission received the petition and registered it as number 1566-07. In a note dated September 14, 2010, notified on September 21 the same year, the IACHR transmitted the pertinent parts of the petition to the State, asking it to submit its response within two months, in accordance with Article 30 of the Commission’s Rules of Procedure. On November 13, 2010, the Commission received the State’s response, which was duly transmitted to the petitioners. The IACHR received additional information from the petitioners in communications dated July 1 and 17 and September 10 and 19, 2008; April 16, 2009; January 14, April 8, November 29, and December 26, 2010; March 3, May 26, and November 9, 2011; February 22 and June 16, 2012; and January 22, 2013. The IACHR also received observations from the State on June 13 and August 26, 2011; March 20 and November 28, 2012; and July 17, 2013. Notes sent by the parties were forwarded to the opposing party.

-Precautionary measures 260-07

  1. The petition was accompanied by a request for precautionary measures, which alleged that the mining was producing grave consequences for the life, personal integrity, environment, and property of the communities, especially since it was affecting their only sources of water for consumption and subsistence activities. On May 20, 2010, the IACHR granted the requested measures, asking the State to “[s]uspend mining of the Marlin I project and other activities related to the concession granted[…] and to implement effective measures to prevent environmental contamination, until such time as the [IACHR] adopts a decision on the merits of the petition associated with this request […]; [a]dopt the necessary measures to decontaminate, as much as possible, the water sources […] and ensure their members access to water fit for human consumption; [and] address the health problems that are the subject of these precautionary measures[…].” Later, after examining additional information from the two parties, the IACHR decided to change the content of the precautionary measures and asked the State to “to adopt the necessary measures to ensure that all beneficiary members of the 18 Mayan communities have access to potable water appropriate for human consumption and household use, as well as for irrigation purposes.” Specifically, the IACHR requested that necessary measures be taken to ensure that water resources were not contaminated by mining operations.

III.POSITIONS OF THE PARTIES

A.The petitioners

  1. The petitioners state that the ancestral land of the Mam and Sipakapense Mayan people consists of the municipalities of Sipacapa and San Miguel Ixtahuacán, in the Department of San Marcos, located in the Western Highlands region. They indicate that the Sipakapense Mayan people is the “original owner” of the land in the municipality of Sipacapa. They explain that its right to that property was recognized in 1708 and that it was granted a “global” property title in 1816, which was revalidated by means of a municipal title in 1918 and has been recorded in the property registry since 1919. They also state that the Mam Mayan people of the municipality of San Miguel Ixtahuacán owns the territory of that municipality, since it was given title to it in 1674, which was subsequently extended, as indicated in a 1908 title. They point out that the territory has ancestral and communal significance for the Mam and Sipakapense Mayan people and that “the communities and persons manage their lands at the local level, through sale/purchase contracts for property rights inherited by the many generations that have been born, grown up, lived, and died in the territory […].”
  1. They maintain that, nonetheless, the State authorized mineral exploration and mining activities whose area of impact includes the territory of the Mam and Sipakapense Mayan communities, without any prior consultation and without guaranteeing that they would share in the benefits accruing from the project or participate in the social and environmental impact assessment (henceforth “EAI”). In particular, they indicate that in 1996 the company Montana Exploradora de Guatemala S.A. (henceforth “the company” or “Montana”) was authorized to carry out mineral exploration activities and therefore applied for a mining license. They add that the Montana representatives persuaded community members to “sell their lands for a few quetzales.” They contend that on September 12, 2003, the Ministry of Energy and Mines (hereinafter “MEM”) published the edict on the mining license application in the official journal and in another print medium. They explain that, under domestic law, opposition may be expressed within 30 days of the date of publication However, those daily papers are not distributed in Sipacapa or San Miguel Ixtahuacán and the edict was not published in the Sipakapense and Mam languages. They point out that Montana presented an EIA, drawn up by consultants hired by the company and without State supervision, which they assert contains serious deficiencies and corresponds to San Miguel Ixtahuacán exclusively and not to Sipacapa.
  1. They claim that the EAI was approved by the Ministry of the Environment and Natural Resources (hereinafter “MARN”) on September 29, 2003, and that on November 27, 2003, the MEM granted a strip and underground mining concession for a period of 25 years, covering an area of 20 km2 in the two municipalities. They state that, subsequently, the company launched a “public information campaign,” promoting the benefits the project would have for the region. They indicate that, at the same time, the communities asked the authorities for information on the socio-environmental impact of the mining activity but they did not receive any response. They maintain that, given the communities’ discontent and opposition, they decided on their own to approach municipal authorities to call for a community consultation.[2] They report that a decision was reached, together with the Municipal Council of Sipacapa, to hold the community consultation on June 18, 2005, which was recorded in municipal agreements. They explain that the legal basis for such agreements may be found in the Municipal Code, according to which the Municipal Council is entitled to hold good faith consultations with indigenous communities or leaders of the respective municipality, whose “results are binding.”[3]
  1. They indicate that, nonetheless, company representatives brought two actions challenging the municipal agreements reached in the consultation and requesting their provisional suspension. The petitioners state that, on the one hand, on June 7, 2005, the company representatives filed an action of unconstitutionality before the Constitutional Court and, on the other, on June 13, 2005, an amparo action with the Seventh Court of First Instance for Civil Matters of the Department of Guatemala. The petitioners state that, on the same date, said court ordered “the provisional suspension of the consultation,” a court decision that, they indicate, was notified to the Municipal Council of Sipacapa “by the pilot of the departmental governor’s office of San Marcos.” They point out that the Human Rights Ombudsman and the Mayor of Sipacapa filed appeals against the provisional suspension. They add that, on June 17, 2005, the Constitutional Court reached a decision in the action of unconstitutionality, ruling against suspension of the consultation.
  1. They indicate that, considering that decision, the consultation was held on June 18, 2005. It was convened through the Community Development Councils (COCODES) and community leaders and held in accordance with their “own law, usages, and customs.” According to the information provided, the communities expressed opposition to the mining project during the consultation. They report that the results were presented to the Municipal Council of Sipacapa, which, in official record 26-2005, dated June 21, 2005, decided to “act accordingly” and pledged “to transmit the respective documentation […] to the corresponding entities for all appropriate purposes.” They add that the results were notified to the Presidency, the Congress of the Republic, and the Human Rights Ombudsman.
  1. As concerns the substantive decision in the proceedings, they state that the amparo action was settled on July 20, 2005, by the Court of First Instance for Civil and Commercial Matters of San Marcos, which ruled that the municipal agreements “lack legal validity and grounds as they violate constitutional norms and therefore infringe the company’s acquired rights.” They affirm that the mayor of Sipacapa and the Public Prosecutor’s Office filed separate appeals before the Constitutional Court, which were settled on February 28, 2008, by a decision to overturn the decision that was appealed and therefore deny the company’s amparo application. With respect to the action of unconstitutionality, they indicate that on May 8, 2007, the Constitutional Court ruled that, of the municipal agreements called into question, only Article 27 of the Rules of Procedure for the consultation was unconstitutional. As they noted, that provision established that the results of the consultation were “generally applicable and mandatory,” pursuant to the Municipal Code. They argue that this decision is arbitrary inasmuch as it is not based on constitutional norms but rather on the fact that said code is imprecise about the mandatory nature of the consultation and that, according to ordinary law, it is incumbent on the MEM and not the Municipal Council to set conditions regarding minerals. They indicate that, although the Court recognized that, except for that provision, the consultation was valid, said decision has not been complied with by the competent authorities, like the MARN and the MEM.
  1. They contend that due process guarantees were not observed in these proceedings. They maintain that two parallel actions were brought on the same matter, on unequal terms, by the company and the State institutions against the Municipal Council of Sipacapa. They note that the individual appointed as Attorney General of the Nation to defend the State’s interests was later appointed as a judge on the Constitutional Court. They indicate that on June 1, 2006, said judge informed the Court that he was disqualifying himself from the case; however, the court did not resolve that question until May 8, 2007, the date on which it issued the ruling. They also allege that the reasonable time period in both constitutional proceedings was not complied with.
  1. As concerns domestic remedies, they report that the decision of the MEM to grant the license may be challenged by an “appeal for reversal,” which must be filed with the authority whose decision is being contested within five days of its notification. In this connection, they explain that they were unable to file that appeal as they had not been notified and, even if they had been, the communities were not in a position to file it. They explain that there was no EIA for Sipacapa, which would have provided them with information; the five-day period was insufficient to study a file that was located at the General Mining Directorate in Guatemala City and whose content was highly technical; the documentation was not in the Sipakapense or Mam Mayan language; and the communities could not defray the costs of hiring specialized attorneys or gaining access to the file. In short, they allege that said proceeding “is not an appropriate and efficient mechanism for guaranteeing access to domestic remedies, even less so for indigenous peoples.” They report that, in view of the foregoing, on January 19, 2007, they applied to the Constitutional Court for amparo, challenging the process of granting the mining license. Said application was denied on January 9, 2008.
  1. In addition, among the domestic remedies pursued, they mention that on December 18, 2006, the Madre Selva Community filed a criminal complaint against Montana Exploradora for industrial contamination and damage to health and the environment. They report that the complaint was transmitted to the Office of the Prosecutor for Environmental Crime in Guatemala City and that the situation “remains unpunished to this day.” Further, they report that, in keeping with a statement made by the ILO Committee of Experts on the Application of Conventions and Recommendations(hereinafter “CEACR”), on March 2, 2010, they submitted a constitutional petition to the President calling for the suspension of mining operations under Article 28 of the Constitution. Moreover, they indicate that the Congress of the Republic conducted an investigation into the legality of the mining license, which resulted in a report, dated October 22, 2009, by the Special National Commission for Transparency, which declared that said commission could not recommend suspension of the mining operations since that matter was within the purview of the MEM.
  1. They contend that the mining activity produced and continues producing grave consequences for the life, personal integrity, environment, and property of the communities, especially because of its contamination of the Tzalá River and its tributaries, the only sources of water for consumption and subsistence activities. They maintain that as a result of the water contamination, a large number of inhabitants, mainly children, have suffered from physical consequences, such as skin infections, thinning hair, and other health problems.[4] They add that this has also had serious social and cultural consequences, as it resulted in high levels of conflict, intra-community division, and the criminalization and intimidation of leaders. On the last point, they report that seven members of the Mam Mayan communities of Ágel, San José Ixcaniche, and Salitre were charged by the Public Prosecutor’s Office as a result of complaints filed by the company for minor injuries, serious injuries, instigation to commit crime, coercion, and threats. Similarly, they indicate that the competent judge in San Marcos issued arrest warrants against eight indigenous women from San Miguel Ixtahuacan for interrupting the mine’s power line, which went through their homes. They claim that the arrest warrants against these women have meant that for years they have lived in fear of being detained and that personnel from the company, accompanied by police officers, went to their homes on several occasions presumably “to take measures” or have them arrested, which caused great anxiety and intimidation.
  1. As regards the admissibility of the petition, they argue that domestic remedies were exhausted with the ruling of the Constitutional Court of May 8, 2007, which was notified on June 25, 2007, and issued in the action of unconstitutionality. Likewise, they request that the preliminary objections raised by the Guatemalan State be dismissed.

B.The State

  1. For its part, Guatemala affirms that it disagrees with the facts put forward by the petitioners as well as with the violations denounced.
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