The State Must Guarantee that Consultation Processes with Indigenous Peoples are Free and in Good Faith
The Xinka Parliament of Guatemala categorically denounces and rejects the bad faith actions of Pan American Silver and the Municipality of San Rafael Las Flores in the department of Santa Rosa, which openly violate the Constitutional Court Sentence of September 3, 2018 (file #4785-2017) in an attempt to carry out a parallel process to spread disinformation outside of the consultation process with the Xinka people over the Escobal mining project.
Yesterday, during the afternoon and evening, several Community Development Councils (COCODES by their initials in Spanish) from the Municipality of San Rafael Las Flores shared that they had received an invitation from the municipality indicating the following:
“By way of this letter, in my capacity as the Mayor of San Rafael Las Flores, I’m pleased to invite you to participate in the planned visit to Pan American Silver’s mine installations located in our municipality.”
“The objective of this visit is to receive a detailed presentation concerning the company’s technical aspects, processes, and operations as part of a follow-up to meetings that I have held with the President’s General Secretary. Additionally, this activity is part of the community consultation process to ensure that community representatives can access complete and up-to-date information regarding the mining process and its impact on the region.”
The former demonstrates an attitude totally contrary to the good faith and free character required of consultation processes with Indigenous Peoples. The Inter-American Court of Human Rights has established that “… ´[…] practices such as efforts to erode the social cohesion of affected communities, whether through the corruption of community leaders or establishing parallel leadership, or by way of negotiations with individual community members is contrary to international standards […]´ deepening distrust. In this regard, the Inter-American Court has emphasized that ´[…] good faith demands the absence of any type of coercion on the part of the state, its agents or third parties that act with its authorization or acquiescence […]´…”
It is important to underscore that conformity with the aforementioned sentence to undertake the consultation process is the state’s responsibility by way of the Ministry of Energy and Mines (MEM by its initials in Spanish). As a result, the municipality of San Rafael Las Flores may be incurring the usurpation of roles and abuse of authority, given that information, analysis, and conclusions based on this information were officially shared as part of the consultation process with the participation of COCODE representatives from this municipality.
During the official information-sharing process, Pan American Silver did not present various reports that were requested of the company, and that the government does not have copies of. Now, it is clear that the company and the municipality of San Rafael La Flores, Santa Rosa, area now fixed on boycotting the consultation process, making false assertions, and trying to persuade the COCODE representatives that these [information-sharing] activities are taking place within the context of the consultation process, WHEN IT IS NOT THEIR REMIT TO DO SO.
Concerning the role of the mining company WITHIN THE CONSULTATION PROCESS, the Constitutional Court expressly found: “For its part, the mining company will present the details of the project and provide all pertinent information to be able to establish the positive and negative impacts of the project that it is implementing.” (emphasis ours). This is in keeping with the International Labour Organization’s recommendations that has stated “…it is the State that is responsible for coordinating the process of prior consultation; in consonance with Convention 169… it should be specified that the participation of companies is only to reinforce the informative aspect concerning the extent of the investment project…” and this should take place through official channels.
Activities or parallel processes such as those mentioned above insult the good faith and accessibility of the consultation, so we DEMAND THAT THE MINISTRY OF ENERGY AND MINES take urgent and firm action to halt and sanction these actions.
Cuilapa, November 19, 2024
- Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Judgment, June 27, 2012 (Merits and reparations), paragraph 186.
- Page 493, Constitutional Court Sentence 4785-2017, September 3, 2018.
- International Labour Organization, Corporate perspective on prior consultation according to Convention 169. In Latin American Lessons Learned, 2021.
- Lee el comunicado en español aquí.
