A report-back on NISGUA’s Rivers for Life Delegation

When Víctor Caal Tzuy came to the U.S. last fall to speak about indigenous peoples’ fight for self-determination in Guatemala, he ended many of his presentations by inviting people to his home to see for themselves how and why more than 50 communities have united in opposition to the Xalalá hydroelectric dam.

Last month, NISGUA responded to that invitation by organizing a 10-day delegation to northern Guatemala to visit the communities threatened by the mega-dam.

The trip was composed of three main areas: 

• Directly meeting and building relationships with the communities impacted by the project
• Deepening our analysis of the historical and current contexts of state violence through presentations from various organizations and human rights experts 
• Taking lead from our partners in order to carry out advocacy meetings and developing our understanding of the role of international solidarity

Meeting with communities

After a short orientation in Guatemala City, we began the two-day journey to the northern lowlands of the department of Quiché to meet with the communities that would be affected by the large-scale hydroelectric project and to visit the proposed construction site.

The delegation spent three days in Copal’ AA La Esperanza, a returned refugee community of about 130 families who were displaced in the 1980s by the violence orchestrated by the Guatemala state during the country's internal armed conflict. These same families would again be displaced by the construction of the dam. Accompanied by leaders from Copal’AA, the delegation traveled up river to visit Victor's community, Las Margaritas Copón – home to Maya Q’eqchi’ families for hundreds of years and the site of the proposed dam.

We walked with families through their subsistence crops, which blended seamlessly with the surrounding subtropical forests. We smelled the richness of the earth and listened to the powerful currents of its turquoise blue waters. We gained nourishment from hand-made tortillas accompanied by beans, squash, fruits, and root vegetables, all of which came directly from the fertile plots of land where families grow nearly everything they consume. Community leaders and elders welcomed us and shared with us these experiences – experiences that made terribly tangible the enormity of the destruction and loss that would be inflicted with the construction of the dam.

We met with students, community spokespeople, ancestral authorities and other representatives who came from nearly a dozen other affected communities that form part of the Association of Communities for Development and the Defense of Territory and Natural Resources (ACODET). In meetings translated at times between three languages – Spanish, Maya Q’eqchi, and English – community members explained the depth of connection they hold with the land and their model of consensus-based, community-wide decision making processes used to determine all projects undertaken in the communities.

During these meetings, representatives explained that the government has strategically withheld basic services as punishment for their organizing against the Xalalá Dam, likening this intentional abandonment and coercion to structural state-sponsored violence. Community members denounced the egregious and ongoing efforts of the National Electrification Institute (INDE) to illegally condition future government services on the acceptance of the Xalalá Dam, falsely promising rural expansion of electricity to their homes, road improvements and supplies for local medical clinics only if communities agree to the dam’s construction.

ACODET representatives and communities have also suffered more overt forms of violence. There have been 19 cases of defamation and 12 incidents of intimidation related to their resistance to the dam. Community members explained the ways in which INDE has deliberately misinformed communities in order to create divisions amongst them, while systematically excluding communities from participating in making the decisions that impact their territory.

Throughout our time in the communities, members of the delegation were inspired by the high level of organization and intentionally-held unity within and between communities in resistance to the dam and were moved to action by the calls for international solidarity – to continue to listen, to bring these stories back to North America, and to take action to dismantle the systems that attempt to take away the self-determination of all of our communities.

"The love we have for our land gives life to our struggle." (Community representative from Copal'AA)

"The government talks about electricity and development but they don't take into account our view of development - living from the land." (Representative of ACODET)

A sampling of the crop varieties grown in Copal'AA. Photo credit: NISGUA

In Copal'AA, a sign reads: No to the Xalalá dam! Rivers for life with
dignity. Without electricity, we can live. Without water, we can't.
Photo credit: NISGUA

"Though we may not have many resources for our struggle, we have our words, our ideas, our thoughts, that we use to defend our land.” (Representative of ACODET)

“I am taking away a new perspective on the struggles of the people of Guatemala…. I can talk about what institutions are using negative (to say the least) practices and what communities are doing to resist and organize… I am also coming home with a new perspective on my consumption in the form of food, water, and other goods and services that I don’t need.” (Delegation participant)

The delegation and members of ACODET stand on the proposed
site for the Xalalá dam. Photo credit: NISGUA

Click here for more photos from the delegation.

Deepening the contextual analysis

Both before and after the delegation’s visit to the communities, organizations such as the People’s Council of Tzututlan and independent journalists from the Center for Independent Media met with the delegates to provide a deeper analysis of how the Xalalá dam fits within a larger, interlinked system of mega-development projects, designed and negotiated by state and corporate interests.

We visited the House of Memory, an interactive museum created by the Center for Human Rights Legal Action (CALDH) as well as the National Police Archives, to better understand the historical context of state violence and repression, the Guatemala people’s resilience, and the ongoing social movements to seek justice, to honor collective memory, and to end impunity. Through those visits, we saw how the legacy of that violence continues on in the repressive tactics of the government that currently target communities working in defense of culture, life and territory.

Those tactics became very present throughout the ten days of the delegation, as participants heard the news of arrests and violent attacks against leaders of the resistance to the Hidro Santa Cruz dam in Barillas, Huehuetenango and other hydroelectric projects in the country. In a very real contextualization of the human rights abuses in the country, delegates had the chance to converse with the family and friends of political prisoners that have been captured for organizing community referenda and defending their territory.

Delegates also had the chance to learn about the positive projects that communities are employing as alternatives to the state’s dominant model of development. Madre Selva, an environmental justice collective based in Guatemala City, met with the delegation to give examples of communities that have successfully undertaken sustainable, small-scale electrification projects to bring energy to their homes, and where popular education techniques have been successful in supporting self-sufficiency and sustainability in rural communities.

Following the calls for advocacy

Resourced with the conversations and experiences with communities and human rights organizations, the delegation joined ACODET in meeting with the Inter-American Development Bank to raise concerns about bank funding being used to condition rural electricity expansion upon acceptance of the dam. Delegates also met with the U.S. Embassy in order to underscore NISGUA’s accompaniment in the region and highlight increasing concerns about the safety of those standing up in defense of the right to consultation and self-determination.

In their first advocacy meeting, the delegation and two members of ACODET spoke with the Inter-American Development Bank (IDB). The IDB has proposed funding to bring rural electrification to communities in the departments of Alta Verapaz and Quiché, amongst others, and is awaiting approval from the Guatemalan Congress. While the funding is not dependent on the construction of the Xalalá dam, community members denounce that representatives from INDE are acting as the gatekeepers to rural electrification, intentionally misinforming communities and conditioning access to electricity on their acceptance of the Xalalá dam. The bank claimed to be unaware of INDE's actions and agreed to follow up, sharing information directly with communities. 

During the meting with the Inter-American Development Bank (IDB) the delegation:

• Facilitated a conversation directly between ACODET representatives and the bank in order to highlight the potential of INDE mishandling the $60 million in IDB funding destined for rural electrification.
• Provided specific examples of INDE conditioning social programs and deliberately misinforming communities regarding IDB funded rural electrification plans

As international observers from the U.S. and Canada, two countries that hold 34% of the voting power at the IDB, the NISGUA delegation demonstrated international concern for the violation of the rights of ACODET communities and further discussed what mechanisms exist to prevent human rights violations from occurring during the implementation of IDB projects.

While these official spaces are incredibly important in advocating for the rights to consultation and self-determination, perhaps more impactful are the advocacy opportunities in our communities back home. Delegates had the chance to discuss and support each other in creating plans to raise awareness and advocate for action and change in their home networks in North America. Plans for educational house parties, report-backs, art exhibitions, and article-writing all sprung into place on the delegation’s last day together.

“Participating in this delegation has been one of the most important and impactful experiences for me! Visiting the spaces and communities, meeting specific actors, experiencing things I’ve previously only read about in an embodied and sensory way has been a turning point in my personal engagement. I feel so inspired and energized to continue this work and to maintain and deepen these relationships.” (Delegation participant)

NISGUA invites everyone in our base to continue to reflect on the knowledge and inspiration we have gained from these relationships with Guatemalan human rights defenders and activists. We also encourage you to reflect on the ways to incite change and to create alternatives to the dominant globalized model that results in the exploitation, displacement and destruction of our communities and our lands.

Uncertainty around the Xalalá Hydroelectric Project

Posted on February 28, 2015 by ACOGUATE

Translation by NISGUA

On November 7, 2013, the National Electrification Institute (Instituto Nacional de Electrificación, INDE) signed an Emergency Purchase contract with the Brazilian company Intertechne Consultores, S.A. to conduct the geotechnical, seismic, geological and geophysical feasibility studies for the Xalalá dam, without informing and consulting the affected communities. More than a year later, affected communities organized through the Association of Communities for Development, Defense of Territory and Natural Resources (ACODET) are still waiting for the decision of the Constitutional Court on the irregularities of the contract and the lack of consent.

Photo credit: ACOGUATE archive

Even though the company was unable to begin their groundwork during 2014, tension in the region has increased. On December 12, the Ministry of Energy and Mines declared it would no longer be actively pushing the Xalalá project forward during the current administration, however communities remain concerned about its continued development. ACOGUATE has accompanied ACODET since 2007 and accompanied consultations in the Ixcán and Uspantán in 2007 and 2010.

Legal action against irregularities within the contract and the right to be consulted
The Xalalá dam is currently the largest planned hydroelectric project in Guatemala. With a generating capacity of 181 megawatts, if built, the dam would be the second most powerful in the country after the Chixoy dam. It is estimated to directly affect 58 communities in the region.  The contract signed between INDE and Intertechne Consultores, S.A. on November 7, 2013 is for a period of 12 months,  and is now being questioned due to irregularities in the contract.

On April 10, 2014, the office of the General Comptroller (Contraloría General de Cuentas, CGC) filed a legal complaint against 12 members of the INDE board of directors, noting irregularities in contracting the Brazilian company to conduct the feasibility studies of the Xalalá dam - a contract valued at Q40.8 million.  According to the General Comptroller, Nora Segura: "It is clear that the adjudication process of the feasibility study was not transparent. There are many irregularities and neither the law nor the internal process of INDE were respected, much less the government procurement law, which is why a criminal complaint was filed.”  In particular, the CGC called attention to three irregularities, stating that they infringed upon government procurement law:

• INDE hired Intertechne directly without going through the public bidding process of GUATECOMPRAS, claiming a national emergency,
• INDE paid an advance that was 20% higher than the maximum allowed for the contract, and
• At the time of signing the contract, the Brazilian company did not have headquarters in Guatemala but instead, established a subsidiary company 60 days later.  

A month later, Amilcar Pop, the President of the Congressional Committee on Integrity (CGC), filed a complaint against members of the INDE board of directors - including Minister of Energy and Mines Erick Archila, former INDE Manager Marinus Boer, and INDE Project Manager Widthmark Estrada - for fraud, abuse of authority, embezzlement and failure to report to the Office of Administrative Offences of the Public Prosecutor's Office.  Amilcar Pop found that the contracting process was set out to directly benefit Intertechne. Alongside the CGC, Amilcar Pop found that the lack of offers from interested companies to conduct the feasibility study - leading to the eventual abandoning of the study in March 2013 - was likely due to INDE's requirement that each company pay $10,000 US just for the right to participate in the bidding process. According to Amilcar Pop: "While complying with legal requirements, that condition was put in place to guarantee that no one would participate and therefore, demonstrate the need to award the contract without any competition."

Even President Otto Peréz Molina gave contradictory answers regarding the irregularities. He called for the resignation of INDE’s manager, Marius Boer, who retired a week before being called to present before Congress.  On April 10, Otto Peréz Molina publicly stated that he was in agreement with the cancellation of the contract. He changed his discourse three days later, however, when he said that the feasibility study for the Xalalá hydroelectric dam was of national priority,  and therefore, INDE was exempt from following the Law of Contracts and Purchasing and instead, needed only to follow its own internal decision-making procedures.  Since the start of the project, the government has stated on several occasions that Xalalá is a priority and that feasibility studies would be carried out during Molina's administration. It was not until December 12, 2014 that the Minister of Energy and Mines stated the administration would not actively push the Xalalá project forward, feasibility studies would continue despite ongoing opposition and it would be the next administration which would make a decision.

Photo credit: ACOGUATE archive

The Supreme Court denied the preliminary hearings requested to contract Intertechne. The Attorney General's Office declared itself unfit to rule on the impacts of the contract, arguing that the Office could not intervene in the activities of an autonomous institution like INDE.  On June 12, 2014, affected communities represented by ancestral authorities of the Xalalá and Las Margaritas Copón communities filed an injunction against the irregularities of the INDE contract and Intertechne. On July 22, ancestral authorities went before the Procedural Complaints Court and with legal support from Maya Lawyers and third-party support from Congressman Amílcar Pop, argued the illegality of Intertechne’s contracting process. They also presented arguments around the lack of consultation with the communities before the contract was signed, effectively ignoring the results of the community consultations in the municipalities of Ixcán in 2007 and Uspantán in 2010.  INDE failed to appear at the public hearing.

In its decision, the Court declared the injunction to be of partial merit and recognized the lack of prior and informed consultation with the communities by INDE. However, the Court did not annul the contract, stating that it would be the responsibility of the Public Prosecutor's Office, who defended the contract at the public hearing. In addition, the Court's ruling requested that impacted communities participate in the study, which was subsequently appealed by ancestral authorities, the Congressional Committee on Integrity, and INDE.

In its second public hearing on October 8, 2014 in the Constitutional Court, INDE argued that they did in fact consult communities, presenting the "right to passage" signed by various Community Development Councils (COCODEs) in the region as evidence. However, the ancestral authorities insisted that no consultation process took place and that INDE only came to communities to offer development projects, which cannot replace consultation in accordance with national and international law. Likewise, the chairman of the Congressional Committee on Integrity argued that, "These rights were not respected in the least, and [the contract] threatenes the constitutional right of the Guatemalan people, as outlined in Articles 58, 66 and 67 of the Constitution, where the rights of indigenous peoples are recognized."  He also noted there were already two feasibility studies made in the 1970s, which showed the soil in the region where the dam would be built is too sandy, making it unfit to withstand the planned Xalalá construction. In addition, this puts into question the justification of a new feasibility study, with a demonstrated lack of transparency on part of INDE in relation to the project. A decision on the injunction is still pending from the Constitutional Court.

Strong Impact on Affected Communities

During 2014, tension in communities affected by the Xalalá project increased, leading to divisions within and among communities that have differing opinions on the dam's construction. Although Intertechne has not appeared in the area, affected communities have claimed that INDE and the Ministry of Planning and Programming (SEGEPLAN) have tried to convince people by coopting leaders and COCODEs, conditioning rural electrification on the acceptance of the dam, as well as offering development projects outlined in the "Immediate Action Plan 2013-2014 Xalalá - Investment for Development." Affected communities organized within ACODET have also suffered heavy pressure, militarization and defamation. Community leaders feel greater concern since the signing of the contract in November 2013. As one community member states: "How can one live when under constant threat?"

According to Amnesty International, there has been an increase in military presence in various locations in Guatemala under the current government, especially in regions with a high percentage of indigenous peoples and strong opposition to megaprojects. This militarization is justified through defamation and criminalization, where leaders are accused of being terrorists or drug traffickers.  The army arrived twice in the region in 2014. On February 25, a military and police convoy arrived at the entrance of the Q'eqch'i communities of Las Margaritas Copón and Xalalá, allegedly due to a complaint about the suspected presence of drug traffickers in the Xalalá community.  Yet no one from the community of Xalalá had registered the complaint.  Nevertheless, several news outlets had already circulated the announcement made by the Minister of the Interior about the presence of drug traffickers in Xalalá, linking communities directly with drug trafficking; Prensa Libre tweeted: "An armed command pressures the population of Xalalá, Ixcán, Quiché to get involved in drug trafficking.”

Photo credit: ACOGUATE archive

Given these circumstances, ACODET believes this to be the continuation of a governmental strategy to impose the construction of the Xalalá project: “Under these circumstances, we understand that the government is trying to terrorize our communities, discredit our struggle against the imposition of the Xalalá dam and justify the presence of military troops in our territory."  Two months later on May 5, military and police convoys returned to the neighboring community, Copalá la Esperanza, in the municipality of Cobán, Alta Verapaz. They arrived in the community in the morning, without warning and armed with machine guns,  explaining that the purpose of their presence was to patrol the area and to cross the river. Since Copalá is a community of returned refugees who fled during the internal armed conflict, the unexpected arrival of the army caused much concern and fear among the community. Community members stated:

"The presence of the military in our community without our consent causes us great concern, as they came heavily armed as if they were coming to wage war against us while we are in times of peace. Their presence causes fear, despair, and reminds us of the traumas inflicted during the internal armed conflict. They turned us into victims of war and we continue to be victimized by the threats their presence brings to our territory; just seeing them causes panic..." 

Concern for the Violation of Fundamental Rights

Reacting to the two military incursions, communities of ACODET cite Article 30 of the Declaration of the United Nations on the Rights of Indigenous Peoples: "No military activities will take place in the lands or territories of indigenous peoples...”  They affirm that entering without consent into their communities violates their right to self-determination, their territory and their ancestral authorities –rights guaranteed by various international treaties. They demand that this type of activity not be repeated.  “There is concern among communities that INDE could enter by force to conduct the studies. Communities live under constant tension, wondering how and when they might enter. Given the violent evictions by the police in 2014 in other parts of the country such as in La Puya and Monte Olivo, the community leaders of ACODET are worried they could face a similar situation.
The Office of the Human Rights Ombudsman (PDH) also expressed its concern about the situation in May 2014: "With the [construction of] the Xalalá dam, three fundamental rights are being violated: the right to life, to live in a healthy environment and the right to health."  On several occasions, leaders and social organizations in the region who oppose the dam have been slandered by local and national actors.

Communities threatened by the construction of the dam have filed complaints with human rights organizations about the use of the Rural Electrification Project Las Copones (Proyecto de Electrificación Rural Los Copones) to carry out the Xalalá project. It has also been reported that INDE geologists have enterred communities by using the legitimate request for bringing electricity to the communities as a substitute for free, prior and informed consent. This action has caused division and confrontations within communities.  At a meeting held in Ascension Copón, Uspantán in December 2013, shortly after signing the contract with Intertechne, senior staff of INDE (Manager Marinus Boer and Project Development Manager Widthmark Estrada) agreed to begin the feasibility studies for the electrification of nine communities.  However, there has still been no progress made in electrification.

In the same manner, humanitarian aid has been conditioned. In March 2014, Uspantán Mayor Victor Hugo Figueroa conditioned material support and equipment to open up roads after heavy landslides in the Zona Reina, Uspantán, in exchange for the acceptance of the presence of INDE engineers who were to perform the technical studies needed to advance rural electrification.  [In the landslides], 27 families of the community of Playitas Copón lost their homes, their livestock and crops and had to take refuge in neighboring communities, where they lived under plastic tents without access to potable water or plumbing.  Since the communities did not accept these conditions, the mayor delayed the road repairs and waited until seven months later - in October - to deliver rooftops and food.

Due to the lack of official information since 2007 on the possible impact of the dam construction, ACODET has requested meetings with relevant state authorities.  In January 2014, the project development manager of INDE began to talk about a design change for the dam, stating that instead of a large hydroelectric dam, there could be several medium-sized ones on both tributaries (Chixoy and Copón. He subsequently argued that the concerns of affected communities are disproportionate to possible damages.

It is important to note that a meeting was held on November 13, 2013, in San Juan Chactelá, Ixcán, between representatives of INDE and communities from Ixcán, Uspantán and Coban who will be directly or indirectly affected by the construction of the dam. At the meeting, INDE failed to mention that the contract with Intertechne had already been signed six days prior.  The International Mission of FIAN, CIFCA, CIDSE and APRODEV that visited two communities of the region in November 2014 found that, "communities do not have adequate information and have not been adequately consulted," and reminded "the state of its responsibility to provide accurate, complete and objective information on topics of interest to the community."  According to Article 169 of the International Labor Organization (ILO), ratified by Guatemala in 1996, the state has an obligation to "consult the affected people using appropriate procedures, particularly through their representative institutions, whenever carrying out legislative or administrative activities that may directly affect them."

For a complete list of sources, please see the original article on the ACOGUATE blog.

The Q'eqchi' and the Duwamish

This article was originally published in Spanish, online at elsalmon.org

By Alejandro Echeverría
October 13, 2014 

Indigenous leaders Víctor Caal Tzuy and Ken Workman

Ken Workman is a Seattle native who despite his tall stature, has characteristics that evoke his famous 19th century ancestor - the indigenous Chief of Seattle (Si'ahl) - who gave this city, which lies in the state of Washington on the Pacific coast of the northern United States, its name. Standing before a large audience at the Duwamish headquarters  (the indigenous group to which he belongs), he speaks about his people and his struggle while alternating between the languages of Lushootseed and English. Beside him, Víctor Caal Tzuy, a Q’eqchi' representative of Las Margaritas Copón, listens attentively while he readies himself to speak about his own struggle 4,500 kilometers to the south.

Ken speaks about the agreement his tribe made in the 19th century with the American colonists, in which they ceded their territory under imminent invasion and in exchange for money, the rights to inhabit the land, and to hunt and fish on it. They weren't given an indigenous reservation like many other tribes who had the fortune of living in more remote areas unlike the geographically strategic city of Seattle. The Duwamish are not a recognized tribe. Many of them have been displaced, integrated into other tribes and lost their customs and cultural unity. Ken talked about current attempts to revive the Duwamish culture from the oral tradition that remains. “You have come at a good moment,” he says while looking at Víctor. 

“Ma sa sa’ laach’ool?” greets Victor in Q'eqchi' with a smile and a wave, after which he speaks in Spanish about the impacts that the construction of the Xalalá hydroelectric dam would have on surrounding communities in the Quiché and Alta Verapaz. In response to these impacts, they organized the Association of Communities for Development and the Defense of Land and Natural Resources (ACODET) in order to preserve their communities and consequently  their culture. 

The dam's construction would directly affect 13,000 people living in the 50 communities that would be displaced, and indirectly affect another 18,000 people living in an additional 44 communities. If forced to reach an agreement with INDE, they would be displaced and have to integrate into other communities – a scenario that is all-too familiar. It is impossible to ignore the parallels with Ken's history from almost 150 years ago, parallels that were brought to light on the “Rivers for Life” tour organized by the Network in Solidarity with the People of Guatemala (NISGUA).

In Washington, what was once the Duwamish River or Black River is now dry because it was transformed into a channel. In a surprising and sad coincidence, another river of the same name in Guatemala – the Rio Negro (“Black River”) – is in danger of suffering irreparable changes to the ecosystem and to the communities that depend on it. The communities in the area are organized, brave and made up of intelligent people who are concerned about local development -  a concept that is not necessarily aligned with what we in the capital city perceive as “progress,”. And that's good; why not? Self-determination is important. “In my river, the fishing is good and everyone is welcome except those who want to come to flood our communities,” said Victor, ending his presentation with a slide showing a picture of a child holding up a fish almost as tall as him.

While having coffee in the reception area of a local Seattle radio station where Víctor had given an interview, I learned about the local rules they have established for the proper management of hunting, fishing and the use of natural resources. These policies are much more reasonable than anything someone from Guatemala City with their smart phone in hand could find on Google. He talked a lot about the impact on the flora and fauna, and on the environment, the incomplete environmental studies, the fact that it is important to continue to generate electricity for the city – oh, the progress! - the many pros and cons, all of which come from a perspective that is so city-focused, but not at all cosmopolitan. In fact, there is little talk at all about the cultural impact.

Even though I already knew about the issues surrounding Xalalá and the history of the Duwamish separately, I never saw them side by side. It opened my eyes. There are communities in Guatemala, like those surrounding the Chixoy hydroelectric dam, that have gone through the same things as the Duwamish. We are in a unique context here, if we can only learn how to listen and decide to learn from history.

Translation by NISGUA

Court rules that Guatemala must recognize results of community consultations

In an historic resolution, a Guatemalan Appeals Court ruled last week that the government must take into account the right to free, prior and informed consent when granting mining licenses on the lands of indigenous communities.

The ruling came in response to a legal action presented by the Sipakapense People's Council in March 2014, arguing that the Ministry of Energy and Mines (MEM) failed to consider the results of a 2005 community consultation before granting the "Los Chocoyos" mining license to Entre Mares de Guatemala S.A., a subsidiary of Canadian mining company Goldcorp Inc. The 2005 referendum in Sipakapa overwhelming rejected mega-development projects on their territories, including mining, by a 99% margin.

The Sipakapense People's Council at a press conference after the Constitutional
Court ruled in their favor.
Photo: Consejo del Pueblo Maya

In their ruling, the court cited Convention 169 of the International Labor Organization (ILO 169), which grants indigenous communities the right of consultation before mega-development projects are constructed on their traditional lands. This international convention has been a vital resource for communities in Guatemala organizing in defense of their territories, especially when domestic law and the Guatemalan government has failed to provide legal pathways to reclaim rights to life and territory.

Community members commemorate the 8th
anniversary of the community consultation in Sipakapa, on June 18 2013.
Photo: SaraGuate

Since Guatemala ratified ILO 169 in 1996, legal uncertainty regarding the implementation of rights outlined in the international accord has left its application in a state of ambiguity. In previous rulings, the Constitutional Court established the legality of community consultations, however ruled that due to a lack of regulation regarding their implementation, the results do not have to be respected by state institutions - a tenuous position, as laws regarding the right to community referendum are outlined at the municipal level. This most recent ruling appears to strengthen the domestic standing of ILO 169 by requiring the government to recognize the results of community referendum when considering the allocation of mining licenses, but again stops short of making the results legally binding.

None the less, the court's latest decision represents an important victory for communities organizing in defense of life and territory, providing them with an important legal precedent that can be used in future court cases to compel the government to recognize the collective rights of indigenous peoples as well as their traditional forms of organization and representation.

The hillsides of Sipakapa, in north-western Guatemala.
Photo: James Rodríguez, mimundo.org

In accordance with the Constitutional Court's ruling, the results of the 2005 referendum will be handed over to MEM to be taken into account in their re-evaluation of the Los Chocoyos mining license, a process which the Ministry has six months to complete. The court has additionally ordered that MEM factor Guatemala's obligations as a signatory to ILO 169 into their consideration.

According to the Sipakapense People's Council, the implications of these rulings can only mean that the Los Chocoyos mining license is illegal and void, and as such all mining activity on Sipakapense territory must be immediately halted. To read the statement released by the Sipakapenses People's Council regarding the Constitutional Court's ruling, click here (in Spanish).

Guatemalan Indigenous Organizations File Complaint over Mining Law with Inter-American Commission on Human Rights

Sources: Western Peoples' Council (CPO) - Network in Solidarity with the People of Guatemala (NISGUA) - MiningWatch Canada – Center for International Environmental Law (CIEL)

(Guatemala City/Ottawa/Washington) Tuesday, Guatemala's Western Peoples' Council of Mayan organizations (CPO) filed a petition with the Inter-American Commission on Human Rights (IACHR) alleging that the country’s mining law was approved without their prior consultation as required under both national and international law. The IACHR is the last resort for the CPO, which has exhausted all domestic recourse to halt violations as a result of current mining legislation.



The CPO first challenged the constitutionality of the 1997 Mining Law in a July 2012 suit filed with Guatemala’s Constitutional Court. In March 2013, however, the Constitutional Court upheld the mining law, contradicting Guatemala's legal obligations to consult with indigenous peoples before the approval of policies that will significantly impact their territories.

“We believe that Constitutional Court’s decision is illegal and contradictory, given that the same court ruled in 2011 that consultation is a constitutional right of indigenous peoples in Guatemala. Indigenous peoples were not consulted on the Mining Law despite its implications for our way of life and the state’s commitment to respect the collective rights of indigenous people under international legal instruments such as the International Labour Organization’s Convention 169,” said Lucia Xiloj, attorney and member of the CPO legal team.



With over 360 mining licenses issued and more than 600 pending, Guatemala’s mining sector has been in the spotlight for increasing conflict and violence across the country. At the root of these conflicts is the lack of respect for free, prior and informed consent of affected communities at the project and policy level.



Nearly a million people have voted against mining on their territories in 78 community referenda held throughout Guatemala since 2005. A public opinion survey published in January 2013 further demonstrated that some 66% of Guatemalans are opposed to mining. Nonetheless, neither the government nor the mining companies have respected community decisions; instead repression against those opposed to mining has intensified.

“The conflict, which has at its root the violation of the right to consultation, has resulted in targeted attacks and death, as well as the criminalization and persecution of community leaders,” said Lolita Chavez, member of the CPO and a signatory on the IACHR complaint.



According to the Agreement on Identity and Rights of Indigenous Peoples in Guatemala’s Peace Accords, the American Convention on Human Rights, the International Labour Organization Convention No. 169 and the United Nations Declaration on the Rights of Indigenous Peoples, Guatemala is obliged to respect the right of indigenous peoples to free, prior and informed consent for any project that could adversely impact them, and to consult with them before passing laws or administrative initiatives that would affect their rights.
 


“A favorable response from the Inter-American Commission on this case is vitally important, given that the current mining law has allowed Canadian and U.S. mining companies in particular to exploit indigenous territories with complete disregard for indigenous peoples' decision-making processes regarding their lands and resources,” said Kris Genovese, Senior Attorney with the Center for International Environmental Law in Washington D.C.



The Western People’s Council is a coalition of indigenous authorities and institutions from seven departments of Guatemala. The complaint filed in the IACHR has 32 signatories representing 8 indigenous groups that make up the Western Peoples’ Council. Each signatory was elected during community assemblies carried out during the weeks leading up to the filing.
 


Contacts

• Ellen Moore, NISGUA, ellen(at)nisgua.org, (510) 868-0612
• Jen Moore, MiningWatch Canada, jen(at)miningwatch.ca, (613) 569-3439 
• Amanda Kistler, Center for International Environmental Law, akistler(at)ciel.org, (202) 742-5832

Background 



In May, the military was sent into indigenous and non-indigenous communities in the area of Tahoe Resources’ Escobal silver project south of Guatemala City, following increased violence in the region, including a shooting against protesters demonstrating peacefully outside the mine site. The company’s head of security and his advisor are currently awaiting trial for their alleged involvement in ordering and then covering up evidence of the attack.



Tahoe Resources is a spin-off from Goldcorp, which sold the Escobal project to Tahoe in 2010 and which now holds 40% of Tahoe’s shares and multiple positions on its board of directors. Goldcorp’s Marlin mine in the northwestern highlands of Guatemala has been the source of continuing tensions over lack of respect for indigenous rights and land, and impacts on water supplies and public health.



For nearly a year and a half, community members in La Puya, just north of Guatemala City, have been peacefully blocking entry to the Tambor mine project currently in the hands of Kappes Cassidy & Associates, which took over the project from Vancouver-based Radius Gold in August 2012 following the shooting of Yolanda Oquelí. Community members opposing the project have faced repeated threats from company workers during the last ten months, despite entering into a high-level dialogue with the government in June.



In August, Rights Action reported that female plaintiffs are facing intimidation and harassment for having brought three lawsuits against Toronto-based Hudbay Minerals regarding the gang rape of a group of women during a forced eviction in 2007 and shootings in 2009 in the eastern municipality of El Estor. The lawsuits are taking place in an Ontario court and mark the first time that alleged human rights abuses regarding a foreign-owned subsidiary have been admitted against a parent company in Canada.


CPO Communiqué: The Council of Maya and Xinca Peoples Denounces the Guatemala State in the Inter-American Commission on Human Rights

On February 28, 2013, the Guatemalan Constitutional Court dismissed the Council’s challenge of unconstitutionality filed against the mining law on March 12, 2012. 

As a result of leaving the current Mining Law in force, the State of Guatemala violates its responsibilities under international law, under which it is obliged to guarantee the effective exercise of our rights to political participation, consultation and consent regarding such legislation.

The collective and individual human rights that have been violated by the State of Guatemala are:

a.    Political Rights – the rights to participation, consultation and consent as recognized in article 23.1 of the American Convention on Human Rights (The Convention).
b.    Right to equality under the law as recognized in article 24 of the Convention.
c.    Right to legal guarantees and judicial protection – right to access to justice – as per articles 8.1 and 25.1 of the Convention, in relation to articles 1.1 and 2 of the Convention.

Based on the description of the facts and declaration of the rights that have been violated; we request that the Inter-American Commission on Human Rights:

a.    Proceed with the analysis of our case and request the relevant observations from the state of Guatemala;
b.    Emit the pertinent report regarding admissibility of the case;
c.    Determine the responsibility of the state of Guatemala for violation of articles 23.1.a., 24, 8.1, and 25.1, related to articles 1.1 y 2 of the Convention through the elaboration of an in-depth report.

Declaration of the Second Gathering of the Q'anjob'al Nationalities

On August 21 – 23, leaders and representatives of twenty Maya Q'anjob'al communities in northern Huehuetenango and Chiapas, Mexico, gathered in San Juan Ixcoy, Huehuetenango to discuss the ongoing imposition of large-scale development projects on their territory and to continue generating strategies for unified resistance moving forward. The three day, cross-border event focused on the reconstitution and autonomy of the Q'anjob'al peoples through the strengthening of the cultural, social, economic and political ties that have historically linked indigenous communities in the border zone between Guatemala and Mexico.

In welcoming the community representatives Francisco Mateo Morales of the Departmental Assembly of Huehuetenango (ADH) explained the essence of the cross-border gathering: “Before we were divided and dispersed in towns, municipalities and countries, we were one, united people. Now our border communities are threatened by the same mega-projects – a new invasion armed with the discourse of false development. We are gathered here to continue the dialogue in order to construct new initiatives, new paths and alternatives for development.”

The gathering reiterated the legitimacy of the community consultation as an expression of cultural and political identity, and as an important tool by which indigenous peoples exercise their nationally and intentionally recognized right to free, prior and informed consent. In 2006 the Huehuetenango communities of Concepción Huista and Santa Eulalia were the first to carry out community consultations. In 2009, eight municipalities located in northern Huehuetenango, together with the Departmental Assembly of Huehuetenango and the Western Peoples' Council (CPO), were the first to declare their territory “free of mining and mega-projects”.

DECLARATION OF THE SECOND GATHERING OF THE Q'ANJOB'AL NATIONALITIES

We are decedents of the Maya Civilization, gathered together at the start of the New Era Jun Tun, Jun Katún, Jun B’aktunes, on the days Oxlajon Watan, Jun K'ana' y Kab' Ab'ak, in the place known as Oyeb’ Tx’o’ Konob’, at the foot of the Sacred Place Kab'tz’in, in Q'anjob'al territory, known today as the Municipality of San Juan Ixcoy. The leaders of Yalimox, Jolom konob', Oyeb Tx’o’ Konob’, Tz'unun Ha', Wajxaklajunh, Yaxb'atz', Hakatan, Tajlaq, Xajlaj, Concepción Huista, San Atonio Huista, Santa Ana Huista, Tila, San Juan Cancuc, Ixtapa Nibak, Las Margaritas, La Trinitaria, Ch'enalvo, San Cristóbal Jovel, Chanja' nationalities of the Q'anjob'al, Chuj, Akateka, Popti', Chol, Tojolab'al, Tzeltal y Tzotzil nation, come together at the Second Gathering of the Mayab' Q'anjob'al Nationalities to share our smiles, happiness and congratulations, and to unite our thoughts, ideas and words with strength and cosmic energy.

Despite the force with which the new invasion attempts to once again plunder our territory, our peoples have jointly worked to strengthen our political, social, economic, cultural and environmental struggles in order to continue our path toward the reconstitution of our nationality according to our cosmovision inherited from our ancestors.

Conscious of the role we play today before our families, our communities, our peoples, and the world, in this Second Encounter of the Mayab' Q'anjob'al Nationalities:

WE DECLARE:

Since the date of the First Gathering until today, the Nation States have increased the handing over of the natural resources of our territories to transnational companies and corporations. At the same time, the States have increased their servility in favor of the above-mentioned companies and corporations by militarizing communities. The justice system functions in support of mega-projects and the the States' public policies work in collaboration with business interests, resulting in the flagrant violation of our nationally and internationally recognized individual and collective rights.

The elements, natural resources and assets that exist in our territories are our treasure, our wealth and our invaluable ancestral inheritance, and it is up to us to administer these resources according to our cosmovision. Decisions regarding the administration of these resources belong to the original peoples, and not the government nor the companies. The governments and the companies only provoke conflict, pain, fear, anguish, persecution, imprisonment, abduction, torture and assassinations in our territories.

We reiterate our commitment to continue defending our mother earth, the sacred corn, the water, the forests, the mountains, our families, our communities and our people, making use of our own values, principles and ancestral practices with the firm conviction to maintain governability, strengthen democracy and to continue strengthening the unity of the Q'anjob'al nationalities. We will also base this effort on national and international legislation.

The Patq'um, the Q'umlb'ail, the Lajti', among others, are our peoples' social political systems based on our own consmovision through which we continue to practice the construction of consensus, agreements and actions in order to strengthen the Q'anjob'al nationalities.

We resume and strengthen political, economic, social and cultural exchange between our peoples, overcoming the obstacles of the administrative and political limits imposed by the States. We commit to continue working to re-establish the ancestral autonomy of our Q'anjob'al nationalities and not allow our small differences to convert into obstacles, but rather to recognize our diversity as our cultural wealth.

The Nationalities of the Q'anjob'al People are not represented by the Guatemalan or Mexican states; that is to say, we are a Nation without a State. Therefore, we will tirelessly fight with other nationalities of Maya descent for the construction of Plurinational States in order to no longer be a Q'anjob'al Nation without a State.

Oyeb Tx’o’ Konob’, Kab’ Ab’ak.
San Juan Ixcoy, August 23, 2013

Guatemalan complainants celebrate effective suspension of Tahoe Resources license

CALAS and the Xinca Parliament announce the suspension of
Tahoe Resources' mining license on Wednesday morning. Photo: Prensa Libre

(Ottawa/Guatemala City) On Tuesday, the Civil and Mercantile Division of Guatemala’s First Court of Appeals notified the Centre for Environmental and Social Legal Action (CALAS) that it is upholding an appeal associated with Tahoe Resources' production license for the Escobal project.

Quelvin Jimenez of the indigenous Xinka Parliament presented the appeal in May with legal support from CALAS, claiming lack of due process regarding a complaint he filed against the company's license prior to it being granted on April 3, 2013. The Xinca Parliament, the San Rafael Las Flores Committee in Defense of Life and Peace, and the Santa Rosa Diocese Council for the Defence of Nature (CODIDENA) supported the appeal process.

The Appeals Court found in favour of Jimenez and ordered the Ministry of Energy and Mines to adequately attend to his complaint, which was based on concerns over negative impacts on water supplies in the area of Tahoe’s Escobal silver project, currently under construction.

CALAS lawyer Rafael Maldonaldo remarked, “This is a historic sentence for the rights of all Guatemalans. The decision means the suspension of Tahoe Resources’ exploitation licence, preventing the company from putting the mine into production.”

Since November 2011, Jimenez and more than 200 other affected community members presented formal objections to Tahoe’s request for a licence from the Ministry of Energy and Mines. Less than an hour before the Ministry announced that it had granted Tahoe its license, Jimenez and others were notified that their objections would not be heard.

Jimenez regards the decision as a sign of hope for the affected communities where tensions have run high in recent months. During a press conference Wednesday morning he remarked, “The only thing the Escobal mine is currently producing in the area is conflict.”

Tahoe Resources’ Escobal mine has been mired in controversy given broad community opposition and incidents of violence, the most recent of which has been linked to company personnel. Then Security Manager of the Escobal mine, Alberto Rotondo, is under house arrest awaiting trial for alleged participation in an April 27 shooting against people protesting outside the mine that left six wounded.

Goldcorp owned the Escobal silver project until 2010 and currently holds 40% of Tahoe Resources’ common shares. Most of Tahoe’s directors have prior or current connections back to the gold producer whose Marlin mine in northwestern Guatemala has been a site of permanent conflict, given lack of respect for community consent and ongoing concerns over impacts on water supplies and the health of indigenous communities.

Contacts:

• Rafael Maldonado, Centre for Environmental and Social Legal Action (CALAS), (502) 5307 4250
• Jen Moore, Latin America Program Coordinator, MiningWatch Canada, (613) 569-3439
• Lisa Rankin, Coordinator, Maritimes-Guatemala Breaking the Silence Network, (502) 5071 4164

Indigenous organizations denounce proposed mining moratorium

In a televised program broadcast from outside Tahoe Resources’ conflictive Escobal mine project, President Otto Pérez Molina announced a proposed two-year moratorium on the granting of new mineral mining licenses. A similar moratorium put in place under the Colom presidency was lifted under the Molina administration, allowing for the issuance of roughly 100 exploration and exploitation licenses during the last year and a half. The President and Minister of Energy and Mines, Erick Archila, took care in assuring the public and Tahoe executives in particular, that the decision would not impact the Escobal project, approved for mineral exploitation in April of 2013.

He also explained that the purpose of the moratorium is to allow the government to pass reforms to the 1997 Mining Law. In a groundbreaking legal action filed in July 2012, this same law was denounced by the Western Peoples Council (CPO) as unconstitutional, as it fails to fulfill national and international mandates that require the State to consult with indigenous people regarding policies that will significantly impact their territories. In March, 2013, more than eight months after the action was filed, Guatemala's highest court upheld the Mining Law, rejecting the CPO appeal.

Indigenous and campesino organizations denounced the latest moratorium as a political show intended to calm widespread resistance to harmful mining projects, while pushing through reforms that do nothing to address the real issues including the lack of respect for communities' right to consultation on projects that impact their lives, livelihoods and territories.

Read NISGUA's translation of the declaration from the Western Peoples' Council and the Departmental Assembly of Huehuetenango below. See the original Spanish version here. 

THE ORIGINAL PEOPLES HAVE NEVER ASKED FOR A MORATORIUM; A DEMOCRATIC PRESIDENT SHOULD BE CONSISTENT WITH THE RESULTS OF THE GOOD FAITH COMMUNITY CONSULTATIONS

The announcement of the President of the Republic of Guatemala to present a law initiative to the Congress of the Republic to decree “a two year moratorium on the granting of additional licenses for mineral mining” in the country, while starting the debate for a new Mining Law in the legislative branch, is neither novel nor substantive for the Original Peoples of Guatemala. The current president’s predecessor, Mr. Alvaro Colom Caballeros, had already put this into practice.

To bring back a moratorium on the granting of mining licenses is more evidence of the hasty and improvised attitude of the current government in lifting the moratorium previously in place.

Furthermore, after the Original Peoples presented a legal action of unconstitutionality against the current Mining Law, the Executive Branch carried out two desperate actions: a) the suspension of the moratorium put in place by the previous president, and b) the presentation of a new initiative to reform the Mining Law.

The suspension of the first moratorium brought the massive granting of un-consulted licenses for mining in indigenous territories, while the Mining Law reform initiative demonstrates the lack of patriotic interest in protecting national sovereignty. This Machiavellian initiative makes clear that the  recently announced proposed moratorium would be repealed in the case of reforms to Mining Law Decree 48-97, or if a new law is created.

The moratorium law initiative - “suspension of the granting of licenses” - will not immediately go into effect as it must be read in the plenary, sent to the Commission of Energy and Mines for analysis and then sent back to Congress for discussion.

This initiative is a “smoke screen and a total show” that seeks to placate community resistance and conflicts as a result of the imposition of the mining model in the country. This proposal is contradictory because during the last year and a half the Executive has granted roughly 100 mineral mining licenses.

The people have not asked for a moratorium on community consultations; the people have demanded that the government respect the decisions of the good-faith community consultations that have overwhelmingly rejected this model of death disguised as mining activity.

Guatemala does not need to plunder the country in order to generate its own development. Mining activity is not the only alternative nor is it a priority for an integral development model.

Huehuetenango, July 2013

DEPARTMENTAL ASSEMBLY OF HUEHUETENANGO  -ADH-

MEMBERS OF THE WESTERN PEOPLES' COUNCIL  -CPO- 

NISGUA's genocide trial coverage: the complete collection

While we await the next steps of the genocide trial, we are honored to provide an accessible archive of the daily coverage we provided from day 1 of the trial. Please read and share this historic collection.

• Genocide on Trial, Day 1: Ixil witnesses speak
  
• Genocide on Trial, Day 2: Ixil Voices in the Halls of Justice
• Genocide on Trial, Day 3: "...justice for everything we lived through."
• Juan Raymundo Maton: "...they destroyed everything, not just our crops but our culture."
• Genocide on Trial, Days 4 & 5: "This is how my heart feels, thank you for asking me."
• Genocide on Trial, Day 6: "What I came here to share, I felt it in the living flesh, in my bones."
• Genocide on Trial, Day 7: "I am telling this to the eyes and ears of the world."
• Genocide on Trial, Day 8: Women survivors of sexual violence, "Your truth is our truth"
• Genocide on Trial, Day 9: "We were the first ones to fall..."
• Genocide on Trial, Day 10: Expert witnesses testify, “Racism facilitated the extermination of the Ixil...”
• Exclusive Interview with the AJR: "It is our right to demand justice and reveal the truth"
• Genocide on Trial, Day 12: Beatriz Manz, author of "Paradise in Ashes"
• Genocide on Trial, Days 11-14: Forensic experts testify
• Genocide on Trial, Days 13 & 14: Defense experts testify, "There was never intention to commit genocide"
• Genocide on Trial, Days 15 & 16: Experts testify, "The Ixil social fabric was destroyed in the attack against their culture"
• Genocide on Trial, Days 17 & 18: AJR Responds to efforts to delegitimize the trial
• Genocide on Trial, Day 19: Defense delays resting their case; Statements outside courtroom multiply
• Genocide on Trial, Day 20: Defense grandstands; Trial proceedings at risk
• Genocide on Trial, Day 20 part 2: AJR survivors respond to dramatic events
• Genocide Trial, Day 21: Trial will continue, Proceedings await decision from Constitutional Court
• Constitutional Court issues rulings, ongoing questions about how they impact genocide trial proceedings
• Genocide trial still suspended: Supporters remain hopeful, public dialogue continues
• Genocide on Trial, Day 22: Trial reconvenes and attempts to move forward
• Genocide on Trial, Day 23: Proceedings continue, trial will reconvene on May 7
• Genocide on Trial, Day 24/25: Defense incensed and exposed, Judge moves to concluding arguments
• Genocide on Trial, Day 26: Concluding arguments, "You cannot deny the undeniable"
• Genocide on Trial, Day 26 part 2: Benjamin Jerónimo on behalf of AJR, "I ask that justice be done... so the survivors can feel peace"
• Genocide on Trial, Day 27: Genocide trial closes and moves to deliberations
• Ríos Montt: Guilty of genocide and crimes against humanity
• Sentence of Dignified Reparations for the Ixil People
• Genocide trial sentence overturned; CALDH press conference called sentence, "An opportunity for peace"

Speculation around genocide trial restart; Ríos Montt back under house arrest

Guatemalan civil society reacted to the May 20 annulment of the genocide trial verdict through public actions, marches and vigils overwhelmingly rejecting the decision. On May 24, an impromptu march that some activists reported to be the largest in recent history organized in the name of memory in Guatemala. An estimated 5,000 people filled the streets of the capital to denounce impunity and call for justice. Supporters throughout the world also organized solidarity protests outside Guatemalan embassies to echo the message: Yes, it was Genocide. Sí Hubo Genocidio.

"The truth is told, justice was sentenced. Yes it was genocide."
See more photos from the May 24 march via CPR Urbana

While public opinion on the genocide trial annulment has been expressed in the media and on the streets, the answers to the legal questions necessary to clarify the future of the trial are only slowly being untangled.

Following the decision of the Constitutional Court (CC) to annul trial proceedings after April 19, the Guatemalan Supreme Court faced the challenge of composing a three-judge Appelate Court to carry out the CC decision. Possibly fearing a black mark on their record and the condemnation of the multitudes of national and international bodies calling for an end to impunity in Guatemala, at least 61 judges excused themselves from the case.

Finally, on May 27 the Appellate Court was formed and rapidly carried out the CC decision to annul the trial. Shortly thereafter, Judge Yassmin Barrios excused all three members of her presiding tribunal from future genocide trial proceedings, the inevitable outcome of having already issued a verdict.

On June 4, the Appellate Court assigned the case to the First High Risk Crimes Court "B", made up of Judges Irma Jeannette Valdés Rodas, María Eugenia Castellanos and Sara Griselda Yoc Yoc. The tribunal has presided over other high profile cases for justice including the conviction of Pujujiles gang members for the 2010 murder of Maya artist and community leader, Lisandro Leonardo Guarcax González, and 32 other victims. Judge Irma Jeannette Valdés Rodas also led the tribunal responsible for the conviction of ex-general Pedro Pimental for his involvement in the Dos Erres massacre.

While news reports quickly spread that the trial would not resume until April 2014, an official restart date for the genocide trial has not been determined. The First High Risk Crimes Court "B" has only confirmed their case list extends through March 2014.

Ríos Montt was transferred to the Military Hospital on May 13, after spending only 3 nights in prison. He stayed in the hospital until the early hours of June 12, when he was ordered to return home under house arrest, as he was ordered in January 2012. José Mauricio Rodríguez Sánchez, who was acquitted of all charges, is back in police custody and remains in the Military Hospital, according to Guatemalan newspaper El Periódico.

Meanwhile, Ríos Montt and Rodríguez Sánchez' lawyers continue to argue that the former generals should be granted amnesty. However, Article 8 of the National Reconciliation Law, passed as part Guatemala's 1996 Peace Accords, invalidates amnesty in the cases of genocide, torture and forced disappearance. Regardless, the defense lawyers continue to claim the law cannot be applied retroactively - that is to say that  it cannot be applied to crimes committed in 1982 and 1983. The lawyers originally made the case for amnesty in December 2012, and were denied by Judge Miguel Ángel Gálvez. Naturally the defense appealed, and now it's up to the Constitutional Court to make a final ruling. Ramón Cadena, expert in international law, declared in his testimony on day 15 of the genocide trial: "Genocide can't be forgiven, it can't be granted amnesty."

Complaint asks for investigation into Tahoe Resources after wiretap evidence implicates employees in violence at Escobal mine

On Saturday April 27, mine security at Tahoe Resources' Escobal project opened fire on community members peacefully gathered outside the mine site. Six men were shot and seriously injured. This incident set of a chain of events, eventually resulting in the declaration of a state of siege in four municipalities surrounding the Escobal mine. 

On April 30, Alberto Rotondo, Security Manager for Tahoe Resources was arrested and on May 7 Rotondo was charged with obstruction of justice and assault. On May 4, another Tahoe employee, Juan Pablo Oliva Trejo, was arrested and later charged with concealment of evidence for his role in helping Rotondo mobilize during the days following the attack. Wire tap evidence gathered by Guatemala's Public Prosecutor's office implicates both men in the crimes.

According to Canadian law, Tahoe Resources is obligated to inform their shareholders and the public in general of any events that may impact the project. Tahoe has only released one statement regarding the concerning events on April 27, downplaying the seriousness of the incident and criminal implications for their employees. On May 31, the Justice and Corporate Accountability Project, in coordination with local partners, submitted a complaint to the Ontario Securities Commission regarding Tahoe's lack of disclosure. Please see the press release below.

For further background on Tahoe's dangerous investment, see our May 8 Investor Alert here. 

FOR IMMEDIATE RELEASE

June 3, 2013

COMPLAINT ASKS ONTARIO SECURITIES COMMISSION TO INVESTIGATE TAHOE RESOURCES AFTER WIRETAP EVIDENCE IMPLICATES EMPLOYEES IN VIOLENCE AT GUATEMALA MINE

(Toronto/Ottawa) Friday, the Justice and Corporate Accountability Project (JCAP) submitted a complaint to the Ontario Securities Commission regarding Tahoe Resources’ (TSX: THO; NYSE: TAHO) poor disclosure about violence in connection with the company’s only mine project in southeast Guatemala.

On April 27, security personnel shot and wounded six people gathered outside of the Escobal mine site. Wiretap evidence gathered under orders of the Guatemalan public prosecutor’s office has implicated company employees.

According to the wiretap evidence, Tahoe’s Security Manager Alberto Rotondo ordered the mine security to attack the protestors. Mr. Rotondo has been charged with causing serious and minor injuries and obstructing justice, which included tampering with evidence at the site of the crime. He is currently under house arrest and awaiting an evidentiary hearing in July 2013.

The security advisor for the company, Juan Pablo Oliva Trejo, has also been apprehended in connection to the attack and charged with concealing a crime. According to wiretap evidence, he helped Mr. Rotondo mobilize in the days following the attack, warning him to leave the country to avoid facing legal problems. 

According to Securities Commission requirements, Tahoe Resources must file material changes “forthwith”. Company disclosure, however, has been both insufficient and inaccurate.

“We are concerned that Tahoe Resources has downplayed the serious crimes for which its employees have been accused in comments to the press and that it has not issued an official statement since the wiretap evidence came to light that would correct earlier errors,” stated lawyer Shin Imai of JCAP at Osgoode Hall Law School in Toronto.

JCAP has requested that the Commission undertake an investigation based on section 75(1) of the Securities Act. JCAP filed the complaint on behalf of MiningWatch Canada and its Guatemalan partner, the Committee for the Defence of Peace and Life of San Rafael Las Flores.

“As the company’s only mine project, investors, and the public in general, need to know about the implication of its employees in such an egregious attack, as well as widespread and ongoing opposition to the mine,” remarked Jen Moore for MiningWatch Canada.

Local communities have resoundingly rejected the Escobal mining project in 12 community consultations to date and have sustained a peaceful resistance to the mine for three years. Goldcorp Inc. owned the Escobal project until 2010 and currently owns 40% of the shares in Tahoe Resources. As of March 2012, the Canadian Pension Plan held $9 million CDN worth of shares in the company. 

A copy of the letter submitted to the Ontario Securities Commission on May 30 can be accessed here. Refer to an Investor Alert from May 8 for further background here.

Contact:

Shin Imai, Justice and Corporate Accountability Project, Osgoode Hall Law School, York University, (tel) 647-524-2312

Jennifer Moore, Latin America Program Coordinator, MiningWatch Canada, (tel) 613-569-3439, jen(@)miningwatch.ca

The Justice and Corporate Accountability Project (JCAP) is made up of volunteer lawyers and law students who provide research and advice on corporate accountability in Latin America.

MiningWatch Canada is a pan-Canadian initiative supported by environmental, social justice, Aboriginal and labour organisations from across the country. It addresses the urgent need for a co-ordinated public interest response to the threats to public health, water and air quality, fish and wildlife habitat and community interests posed by irresponsible mineral policies and practices in Canada and around the world.

Rubén Herrera Released from Prison!

Rubén Herrera and Cecilia Mérida moments after Rubén was liberated.

Yesterday, Rubén Herrera, unjustly imprisoned since March 15 for his resistance to the Cambalam hydro-electric project, was released from custody and cleared of all charges in one of two legal processes against him. The second process (176-2011) dating back to 2009, was provisionally closed at the request of the Public Prosecutor's office. Judge Miguel Gálvez of Guatemala City's High Risk Court “B” agreed with the prosecutor's assessment that the evidence against Herrera was imprecise and contradictory, and granted the prosecution a six month time frame to build a better case or present closing arguments. 

Beginning with Herrera's first hearing in Santa Eulalia, Huehuetenango, the Public Prosecutor's office has maintained that the case lacks evidence linking Herrera to the crimes. Despite these arguments the presiding judge in Santa Eulalia, at the request of co-plaintiffs Ecoener Hidralia Energía/Hidro Santa Cruz S.A, ordered the case forward. 

At the beginning of trial proceedings on Thursday, the Public Prosecutor reiterated its request to provisionally close both cases against Rubén Herrera citing a lack of evidence linking him to the accusations. What followed was an unusual scene, during which the lawyers at the prosecution table argued against each other. Lawyers for co-plaintiff Hidro Santa Cruz denounced the Public Prosecutor's “surprising” request and “passive attitude”, and requested that Judge Gálvez proceed to trial. Joining the Hidro Santa Cruz's legal team was a familiar face from the genocide trial, César Calderón, defense attorney for former director of military intelligence José Mauricio Rodríguez Sánchez. 

During the three hours that followed, the defense team representing Herrera argued the two separate cases, demonstrating both the political nature of the charges, the questionable behavior of representatives of the judicial system in Santa Eulalia, and the lack of concrete evidence against Herrera. 

In the 2012 case (65-2012), Judge Gálvez dismissed the charges outright. The case was permanently closed citing the fact that none of the testimonies provided by witnesses and victims in the case file even mention Rubén Herrera. In the 2009 case, Gálvez upheld the request from the Public Prosecutor to provisionally close the case stating that the accusations and arrest warrant were based on “two or three flimsy declarations”. Throughout the hearing, Judge Gálvez referenced his belief that social conflict in Barillas is the result of a lack of respect for international law protecting communities' right to consultation. 

In response to the provisional closure of the 2009 case, Cecilia Mérida, Rubén's life partner, stated that it will allow them more time to continue to disprove the allegations against Rubén; and more time to prove that he has been falsely accused by the company in order to undermine popular resistance to the hydro-electric project. Throughout the duration of his imprisonment, Herrera, Mérida and the Departmental Assembly of Huehuetenango (ADH) have continued their struggle in defense of territory in the face of rising repression and criminalization. Rubén declared soon after his release: "In prison I learned that it doesn't matter where you are, you can continue to fight.”

While the 2012 case against Rubén is closed, three of the 11 men unjustly imprisoned for eight months for their peaceful resistance to the Cambalam project continue to be linked to the same the May 1, 2012 incident and continue to await the permanent closure of their case. Likewise, 20 additional individuals still have arrest warrants pending against them related to the same event. 

Dozens of supporters packed the courtroom yesterday in support of Rubén and the struggle for communities' right to self determination. More than 2,800 people from the international community demonstrated their solidarity by signing the petition demanding Rubén's release and the end to persecution of community leaders, which was delivered to Guatemalan authorities last week. 

Supporters filled the seats and lined the aisles in support of Rubén.

The role of international solidarity continues to be important for the individuals, communities and organizations defending the right to consultation, particularly as criminalization of peaceful protest continues to intensify in Guatemala. In the words of the ADH: “In a very special way, we want to thank the show of solidarity with our cause. We are confident that this solidarity encourages and strengthens us to continue fighting.”


 NISGUA works closely with the Departmental Assembly of Huehuetenango (ADH) in their efforts to promote self-determination and alternative visions of development in the highland department of Huehuetenango. The ADH receives international human rights accompaniment from NISGUA through the ACOGUATE project and participated in NISGUA's 2010 tour.