2005- Community Consultations Processes [Escobal]

Between 2005 and 2016, approximately 80 community consultations (consultas comunitarias), also known as popular consultations (consultas populares or consultas), were held across Guatemala, resulting in a large majority of citizens voting against mining and other commercial activities in their territories (Ardon, 2016). The "consulta movement" in Guatemala began in 2005 in response to a hydroelectric project in Río Hondo, Zacapa, and was quickly adopted by communities affected by the Marlin Mine (Laplante & Nolin, 2014). Communities turned to the consulta process as a democratic and peaceful mechanism for participating in decision making relating to projects affecting their communities (Guatemala Communitaria, 2016). The process is based on national laws, such as the Guatemalan Municipal Code, and the rights of consultation and participation enshrined in international instruments, such as the International Labour (ILO) Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, the International Covenant on Civil and Political Rights, and the United Nations Declaration on the Rights of Indigenous Peoples (ibid). In particular, the ILO Convention No. 169 requires that contracting states (including Guatemala) obtain free, prior and informed consent (FPIC) from affected indigenous communities before proceeding with commercial activities on or impacting their territories, and that the process for obtaining such consent should follow customary procedures of the communities (Walter and Urkidi, 2016).

In some instances, for example, consultations relating to the Marlin Mine and Escobal projects, the process is also governed by indigenous law and community governance structures, and has been described as "indigenous direct democracy" (Abbott, 2014). According to Professor Shin Imai, "[f]rom the Indigenous perspective, the authority and jurisdiction to act does not arise from Guatemalan legislation. The authority arises from the inherent rights that come with being an Indigenous people" (Imai et al, 2007; 117). Some reports indicate that the Guatemalan government has "made little effort to listen to the community’s concerns and decisions" as expressed through the consulta process and, in some instances, taken "steps to limit the right of the consulta" (Abott, 2014). While the results of community consultation processes must be taken into account, the Constitutional Court ruled in 2016 that they (consultas populares) are not binding on the government, nor do they grant veto powers to affected communities (Corte de Constitutionalidad, 2016). Nonetheless, indigenous and other community organizations have and continue to rely on legally recognized consultation and participation rights to challenge the validity of mining licences across the country.

Notably, in April 2018, the Labour Commission of the Guatemalan Congress announced that it would begin analyzing a draft bill on proposed procedures for consultation with indigenous peoples. The same month, the Western Peoples' Council of Mayan Organizations (CPO) announced that it had started an action before the Constitutional Court challenging this bill for, among other things, violating indigenous rights to consultation and self-determination. The group questions whether a formal law regulating indigenous consultations processes is necessary, noting that there are over 30 decisions of the Consitutional Court that establish that the non-existence of this type of law is not an obstacle for compliance with the right to consultation by state officials. 

With respect to the Escobal project, as of May 2017, six municipalities closest to the project had held community consultations, with the majority of voters opposing the mine. These municipalities are Nueva Santa Rosa, Santa Rosa de Lima, Casillas, Mataquescuintla, San Carlos Alzatate, and Jalapa (JCAP, 2017). According to a complaint filed by the Justice and Corporate Accountability Project (JCAP) with the British Columbia Securities Commission,  "[t]wo other plebiscites [community consultations] in municipalities outside of the immediate area of the pending concessions [also] resulted in votes against the mine" (Ibid). JCAP further noted that, while "Tahoe and its supporters brought at least four court cases to try to stop and invalidate these official votes", the communities' right to hold these consultations was upheld by the Constitutional Court (JCAP). (See the Legal Action entitled "Complaints to Canadian Securities Regulators", for more information regarding JCAP's complaint). 

Note also that, in September 2018, the Constitutional Court considered the general scope of indigenous peoples' rights to consultation in a case involving the suspension of mining licences for the Escobal project. In its decision, the court appears to confirm the constitutional status of this right, along with its recognition in international law; however, its ruling also emphasized that the right to be consulted does not create veto rights. The nature of the right is to be consultative, not binding (consultiva y no vinculante). According to the court, its primary goal is to ensure involvement, participation, and information for affected communities through administrative or other methods (Constitutional Court, 2018, pp. 145-148, 153) (See the Legal Action entitled "2017- Judicial Suspension of Tahoe's Mining Licences", for more detail).