2005-2008 Constitutional Challenges to Community Consultation Processes brought by Montana Exploradora

In June 2005, Montana Exploradora de Guatemala, S.A., a wholly owned subsidiary of Goldcorp Inc., sought an injunction (amparo) against the Municipality of Sipacapa in the Department of San Marcos challenging the constitutionality of three municipal agreements in which the municipality agreed to consult, in good faith and in accordance with the customs and traditions of the Sipakapa people, with indigenous authorities, the indigenous population of Sipakapense Mayan ancestry, and neighbours over 18 years old, in order to establish whether they are in favour or against mining reconnaissance, exploration, and exploitation of metallic minerals through open pit mining, as proposed in the Municipality of Sipacapa. The purpose of this consultation was to determine if the interests of those consulted were affected and to what extent (Constitutional Court, 2008, Expediente 1643-2005 and 1654-2005).

The company argued, among other things, that the municipality did not have the authority to implement voting rights, the natural assets in question belong to the Guatemalan state and cannot be disposed of by a municipal act, the exploitation of minerals is recognized in the constitution as a public necessity, and the impugned municipal agreements went beyond the authority granted under the Municipal Code. The injunction was granted by a lower court and subsequently appealed to the Constitutional Court by the Municipality of Sipacapa and the Office of the Public Prosecutor.  The Court found, among other things, that impugned consultation agreements were allowed in accordance with rights enshrined in the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries and the Guatemalan constitution. A municipality that consults with its population on issues within the authority of other state institutions is not infringing on or diminishing national sovereignty. It is giving effect to the individual and collective rights to freedom of expression and petition of every citizen. On the issue of whether the results of municipal consultations ought to be considered obligatory, the court referred to an earlier decision involving the Municipality of Sipacapa, in which it held that such consultations are not obligatory in nature. The consultative process may seek community input on any topic that impacts the interests of the community, but its effect cannot be to regulate matters that are within the authority of other state institutions (Constitutional Court, 2007, Expediente 1179-2005).

Similarly, in September 2018, the issue of indigenous rights to consultation was again considered by the Constitutional Court in a case arising from the suspension of Escobal mining licences. In this decision, the Court appears to again confirm the constitutional status of this right, along with its recognition in international law. However, it emphasizes that the right to be consulted does not confer veto rights onto consulted communities. The nature of the right is to be consultative, not binding (consultiva y no vinculante). Its primary goal is to ensure involvement, participation, and information from affected communities through administrative or other methods (Constitutional Court, 2018, pp. 145-148, 153).