The office of the Guatemalan Human Rights Ombudsperson (PDH) is accompanying the Xinka Parliament as it fights to uphold a Constitutional Court ruling ordering the Xinka be consulted on the Escobal mine.
On September 3, 2018, the Constitutional Court found the Xinka had been discriminated against and had their Indigenous rights violated when they were not consulted prior to the start of operations at a Canadian-owned silver mine in southeastern Guatemala. The mine was first brought into production in 2014 by Tahoe Resources and was acquired by Vancouver-based Pan American Silver in 2019. In its decision, the court suspended the mine’s operating license, ordering the Guatemalan government to consult the Xinka in accordance with their ancestral traditions. The court also named the PDH as an observer in the process.
In the two years since the verdict, there has been little progress in the consultation. The Ministry of Energy and Mines has only recently taken a step forward in accepting the 59 Xinka representatives elected to participate in the pre-consultation. Up until this recent decision, the Xinka Parliament has repeatedly denounced the Guatemalan government for violating due process and for its ongoing discrimination towards the Xinka. The government failed to respect Xinka customs and excluded Xinka participation in the process of identifying the area of influence. The government and the company argue the mine’s impacts are contained to a two-kilometre radius around the project. But the Xinka Parliament says the mine’s environmental, social, and cultural impacts extend far beyond that limited scope and therefore more people should be consulted.
These procedural irregularities and the discrimination faced by the Xinka Parliament prompted the PDH to denounce the consultation process in November 2019 and warn that if the process does not return to the beginning and re-define the area of influence with full Xinka participation, the consultation is at risk of losing all legitimacy and the Constitutional Court ruling will go unfulfilled. Byron Estuardo Paredes, who works with the Office of the Guatemalan Human Rights Ombudsperson, outlines key issues affecting the Xinka and talks about how large scale mining operations like the Escobal project violate the rights of Indigenous peoples.
This article has been slightly edited for clarity. For the full panel discussion in Spanish, see the Xinka Parliament’s online conference, “The effects of mining activity on the rights of Indigenous Peoples.”
The appropriation of Indigenous lands by transnational companies, facilitated by the Guatemalan government
Byron Estuardo Paredes: “The first issue with these mining projects stems from the legitimate authority over Indigenous land and territories. In other words, the first historical problem is the appropriation of [Indigenous] lands which, in one way or another, the State has given away to companies.
The issue is not a legal one — that is, who owns the land. Rather, as stated in Article 66 of Guatemala’s Constitution, the land belongs to those who have ancestrally occupied it, or to whom it traditionally belongs. Throughout the country, a series of problems are arising because this specific right is being violated — whose land is it and to whom does it belong? Historically, it belongs to Indigenous People. This is the first right that is not being respected by these mining projects.”
Violations against Indigenous identity
“Another right being violated pertains to the identity of the Xinka people. Throughout this process, the companies have even cast doubt as to whether the Xinka people exist or not, in spite of everything that is laid out in the Agreement on Identity and the Rights of Indigenous Peoples [a cornerstone document signed as part of the Guatemalan Peace Accords]. This document clearly stipulates that Guatemala is made up of four peoples — the Maya, the Garifuna, the Xinka, and the Mestizo.
There should absolutely be no reason to debate whether or not a certain People exists — that’s already defined in the law. But that was one of the arguments they used.
Identity isn’t only the recognition of a given People, but also the practices that very identity creates: languages, customs, spiritual practices (maya, for instance), the respect and the conservation of Indigenous sacred spaces and ceremonial sites, monuments and historic sites, and their own ways of organizing.
Currently, we’re providing accompaniment to the Xinka Parliament and, at first, [the government] refused to even recognize Xinka ways of organizing or their representatives. Other rights are included within this sense of identity, like spiritual practices. They mark elements of Indigenous Peoples’ philosophical framework that are distinct from that of the mestizos and are different from the ways in which laws are interpreted from a Western point of view.”
The impact of mining on the health and cultural rights of Indigenous people
“Cultural rights are other rights that are being affected. It’s the sum of ancestral traditions and customs that are practiced by the very fact of being a community or an Indigenous People that few understand, like the Xinka. Some say ‘the Xinka do not exist because they don’t [widely] speak the language,’ but they forget that cultural rights go beyond language.
Health is something else that is affected by these mining projects. We see high degrees of contamination in all areas — in the water, on the land — and communities will pay the toll for the mismanagement of these finite natural resources. The impact on people’s health is something that is being laid bare by the COVID pandemic. People don’t just need a hospital, they need a healthy environment.
The management and sustainability of natural resources is also something that is affected. Historically, these water resources and minerals have remained free from the harms caused by large scale extraction processes. And so we see the way that Indigenous People are managing their natural resources is also being affected.”
Violations of the right to democratic participation
“The other right that is directly affected is the right to participate and Indigenous Peoples’ right to consultation, which is found in ILO Convention 169 and is expanded upon in the UN Declaration on the Rights of Indigenous Peoples. Consent must be obtained and it has to have three specific characteristics: it has to be free, prior, and informed. And that right is not being upheld.
Right now, there are four rulings by the Constitutional Court that point to violations of Indigenous Peoples’ rights to consultation, and that’s not just happenstance. The State is recognizing that it is systematically violating this right and, in a sense, they are giving weight to the claims that Indigenous peoples are making.
We still have to talk about the fact that the State has little interest in complying with the Constitutional Court rulings, yet we have to make an effort to get the Court to compel the State to comply. Indigenous peoples do not have access to conditions of equality and this gives way to discrimination that is both historic and that continues to this day.”