2007- Municipalities Declare Territories Free of Mining [ASP1 and ASP2]

Between 2013 and 2015, approximately 20 municipalities across Honduras declared themselves “territories free of mining” by holding public referenda or consultative assemblies (cabildos abiertos) in which communities voted on whether to allow mining operations where they lived. These municipalities included, among others, Sabá and Balfate in Colón; Danlí and Teupasenti in El Paraíso; El Negrito, El Progreso and Yorito in Yoro; Dulce Nombre de Culmí, Juticalpa and Olancho in Olancho; Santa Bárbara, San Nicolás, Atima, Colinas, and San Francisco de Ojuera in Santa Bárbara; Chinaclas and San José de la Paz in La Paz; Belén Gualcho in Ocotepeque; and Jesús de Otoro in Intibucá. These types of public referenda date back to before 2013, with Santa Bárbara first holding one in 2007 and again in 2013 (see Upside Down World, 2015). In some instances, the declaration was preceded by large demonstrations. For example, in El Negrito, it took place “after a mobilisation of 10,000 people” (Middeldorp, 2014:111). 

In legal terms, the declaration of communities as “territories free of mining” is based on community organizations using provisions of Honduran municipal and mining laws to advance local democratic participation in decision-making. For example, Articles 67 and 68 of the 2013 Mining Law require the Honduran Institute for Geology and Mining (INHGEOMIN) to request municipal authorities to carry out a citizens’ consultation before the mining exploitation permits can be granted (See the Legal Action entitled “1998-2013 Honduran Mining Laws [ASP1 and ASP2]” for more detail). In practice, however, it is not public authorities but local communities that have demanded and even held such consultations in compliance with the law. As such, a vote by local communities rejecting the mine theoretically provides a binding legal means of blocking a project moving to the exploitation stage. However, as anthropologist Nick Middeldorp (2014: 113) observed, these declarations “are more symbolic than legal” as exploration has not been stopped with a declaration, less so exploitation already underway. 

The 2017 Supreme Court ruling partially invalidated seven articles in the 2013 Mining Law, including articles 67 and 68 related to community consultation. This opened the possibility of strengthening the legal role of municipal consultation processes, including the requirement to obtain the free, prior and informed consent of indigenous communities in accordance with Honduras’ international legal obligations. However, INHGEOMIN, after a brief suspension, continued to issue mining concessions in the absence of a change in the law. At the end of December 2017, there were more than 300 active mining concession in Honduras (See Report entitled “2017 List of Mining Concessions in Honduras”). 

In November 2019, Congress approved reforms to the invalidated articles of the Mining Law (See Legal Action entitled “1998-2013 Honduran Mining Laws [ASP1 and ASP2]”). Article 67 re-established the obligation on “the Mining authority to request the respective Municipal Council conduct an open citizens’ consultation (cabildo abierto) within 90 days” (la autoridad minera solicitará a la Corporación Municipal respectiva realizar una consulta ciudadana (cabildo abierto), en un plazo no mayor de noventa (90) días) (Decree No 109-2019) regarding the mining project in line with the procedures established in the Law of Municipalities. 

However, the reformed law once again limited this consultation process to the phase immediately prior to exploitation, after the results of exploration and once environmental impact assessments were available. It also required a community vote rejecting the mine to be repeated every year. 

In addition, Article 67 has established the obligation to consult officially recognised indigenous communities affected by mining projects. However, the formulation of the article, which refers to a “prior, free and informed consultation”, is potentially ambiguous as prevailing international standards refer to the requirement to obtain free, prior and informed consent to any project affecting indigenous communities “in which consultation and participation are crucial parts of the consent process” (OHCHR, 2013), therefore the new law may risk allowing an official positive characterisation of the consultation process to supplant the primary objective of free, prior and informed consent of indigenous communities. 

An important basis for the “Territory free of mining” declarations is the Law of Municipalities (see Legal Action entitled “2016-2020 Petitions for Tocoa Municipal consultative assembly to declare “Territory Free of Mining”). This requires local authorities to hold local plebiscites or referenda on issues of importance. However, there are different grassroots strategies regarding the appropriate voting mechanism for community consultations. The national NGO CEHPRODEC has promoted secret ballots covering all eligible community members. In the case of Tocoa, the Municipal Committee in Defence of Common and Public Goods (CMDBCP) preferred to pursue a traditional consultative assembly, involving an open show of hands in favour of the declaration of “Territory free of mining”. The CMDBCP considered this approach to voting in a consultative assembly less susceptible to manipulation than a local referendum run by the national electoral authority—an institution which operates under the influence of local political interests and the mining companies as well as being widely discredited for vouchsafing the 2009 coup d’etat and subsequent unfair elections (See Legal Action entitled “2016-2020 Tocoa Municipal consultative assembly to declare “Territory Free of Mining”").