The struggle for Maya land, oil, and gold

The struggle for Maya land, oil, and gold

After two very recent attacks on Maya community leaders in Guatemala, the challenges faced by the lawyers applying domestic law and international indigenous rights legislation to these conflicts are revealing, as legal concepts are reinterpreted by governments in indigenous communities across the Maya region of Central America.

On the night of 12 June two men broke into the home of José Tavico Tzunun in Santa Cruz del Qiché, Western Guatemala, and murdered him. Tzunun was a member of the K’iche’ Peoples Council in Defense of Life, Mother Nature, Earth, and Indigenous Territory. He helped to organise the town’s referendum on establishing a moratorium on mining and dams. The following day anti-mining activist Yolanda Oquelí was shot while driving home from a barricade against a proposed gold mine in her community of San Jose del Golfo, north east of Guatemala City. She remains in a critical condition.

Two attacks in two days. Tzunun had reported receiving threatening messages if he would “continue bringing the people together for meetings”. His efforts were part of a movement seeking to make the consent of local people a condition for the approval of development and mineral extraction projects on indigenous territory, and the referendum of Santa Cruz del Qiché was the forty-ninth of a growing number across the country.

Conflicts related to mineral extraction and land use are turning increasingly violent on a global level.  A Global Witness report shows that deaths from conflicts linked to environmental destruction have almost doubled in the last three years, to a rate of over two killings a week in 2011. The report concluded that “Governments must ensure that citizens with concerns over how land and forest are managed can speak out without fear of persecution, and that investment projects and land and forest deals are open and fair. This means seeking free, prior and informed consent from affected communities before deals are approved.”

ILO Convention 169

Also known as the Indigenous and Tribal Peoples Convention, ILO 169 has been signed by Guatemala but not Belize. The law commits states to implement legislation to safeguard the property, culture, and environments of tribal peoples.

The UN General Assembly’s adoption of ILO 169 marked a shift from assimilationist approaches to development, seeking instead to boost the control of indigenous peoples over their communities and development paths.

The ILO’s Council of Experts publishes annual reports on the compliance of ILO members, its recommendations frequently ignored by the Guatemalan state.

The Maya region of Central America is particularly illustrative of such conflicts. It is home to great mineral wealth, two states with junk status bonds (Belize and Guatemala) eager for royalties, and indigenous communities often dependent on the land. In both states Mayan communities are fighting to hold onto their land and livelihoods, through exposing violations of their domestic law and the narrow application of the international declarations and treaties on indigenous rights.

Tzunun’s activists have drawn on Articles 63 to 66 of Guatemala’s Municipal Code allowing participatory democracy, the UN Declaration on the Rights of Indigenous Peoples (UN-DRIP), and ILO Convention 169, a binding agreement that requires signatory states to ensure that indigenous and tribal peoples can decide their own priorities in the process of development.

“When people are not consulted, all rights are automatically violated”

Guatemala’s mining law sets royalties at between 1 and 4 percent, designed to entice a global mineral extraction industry to exploit Guatemala’s gold, copper and nickel reserves. Many Canadian companies have responded and are producing profits, but their operations have also become associated with pollution and human rights abuses

Udiel Miranda, lawyer and member of the Church’s Social Pastoral Commission, is leading the legal appeal against the Mining Law. Speaking in a church property on a misty day in San Marcos, Western Guatemala, he said the majority of Guatemala´s 116 mining licences are for indigenous land, and explained the appeal that was ruled permissible by the country’s supreme Constitutional Court:

“During the process of the writing and the enacting of the Mining Law the indigenous peoples were not consulted, likewise in the mining law nowhere is it guaranteed that these communities be consulted prior to these licenses being granted.” This despite the law’s introduction happening after 1996, when “ILO Convention 169 had already become law in our country… for this reason we view the mining law as an illegal mechanism that permits the violation of ILO 169.”

To Miranda the nature of the current mining industry does not comply with the other legislation Guatemala has established to protect the constituent peoples of Guatemala, particularly in the wake of the country’s civil war. The extraction of minerals currently undermines: “the right to collective land ownership, the right to territory, the right to water, the right to cultural identity, to participation in the decisions that affect development, - when people are not consulted all these rights are automatically violated.”

UN-DRIP

The UN Declaration on the Rights of Indigenous Peoples is not binding, but is referred to by judges and so shapes the development of jurisprudence.

The preamble to the UN-DRIP expresses the UN General Assembly’s conviction that “control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,” and recognises “that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment”.

Article 19 reads that: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

The legal route has already borne fruit on the other Atlantic side of the Maya world, in Belize, where the courts have proceeded to integrate UN-DRIP into their own jurisprudence.  Chief Justice Abdulai Conteh referred to the declaration in his judgement, together with ILO 169 and the Convention on the Elimination of All Forms of Racial Discrimination, to assert that Mayan rainforest villages had a right to legal recognition of their collective ownership of their lands.

Belizean Maya villagers had grown weary of having their petitions over farming and hunting land being ceded to foreign logging and mineral operations, gather dust in the national capital Belmopan. So they turned to the courts.

Conejo was one of the two villages that first secured title to their land, in the Supreme Court of Belize. Chief Justice Conteh ruled that “Maya customary land tenure exists in all the Maya villages in the Toledo Districts, and where it exists it gives rise to collective and individual property rights” under the Belizean constitution.

By 2010 a second court case had raised the number of Mayan villages with collective ownership of their land to 24. The Belizean government had been barred from granting exploration or extraction licences to these territories without the ‘free, prior, and informed consent’ of the villagers.

Until the government realized these property rights through providing the official title (which is on hold while the government appeals the ruling), the government is barred from “issuing any concessions for resource exploitation, including concessions, permits or contracts authorizing logging, prospecting or exploration.”

So they turned to the courts.

Conejo was one of the two villages that first secured title to their land, in the Supreme Court of Belize. Chief Justice Conteh ruled that “Maya customary land tenure exists in all the Maya villages in the Toledo Districts, and where it exists it gives rise to collective and individual property rights” under the Belizean constitution.

By 2010 a second court case had raised the number of Mayan villages with collective ownership of their land to 24. The Belizean government had been barred from granting exploration or extraction licences to these territories without the ‘free, prior, and informed consent’ of the villagers.

Until the government realized these property rights through providing the official title (which is on hold while the government appeals the ruling), the government is barred from “issuing any concessions for resource exploitation, including concessions, permits or contracts authorizing logging, prospecting or exploration.”

A forced marriage

Significant dangers confront the Guatemalan Maya as they attempt to generate a similar evolution in their own legislation. In “The right of Guatemala’s Indigenous Peoples to referenda: the rupture between discourse and practice”, the Council of Western Peoples (CPO)  noted sustained “attempts to suppress the organisation of referenda by indigenous peoples through acts of violence indulged and tolerated by the State of Guatemala, and in the worst cases with their involvement. In 90 per cent of referenda, there is evidence of peer harassment, the persecution of leaders, initiation of criminal proceedings against the leaders, and attempts to discredit, delay or cancel the event. Forms of the latter include acts of disinformation in communities announcing the cancellation of referenda. Another strategy reported by respondents is the attempt by companies to co-opt community leaders through offers of money, materials, or property, and attempts to divide communities.”

Free, prior and informed consent (FPIC)
According to the UN-DRIP, states must secure FPIC from indigenous communities prior to implementing measures likely to influence them.

There is, however, not a universally accepted definition of what ‘consent’ means in the context of mineral extraction, with some project proponents equating the concept to ‘consultation’.

According to Ramsey Hart of Canada-based Mining Watch:“Indigenous peoples are standing firm and insisting that the C in FPIC means consent and that means a right to say “no”. To date, consultation has resulted in many negotiated agreements between Indigenous peoples and industry in Canada, but when communities choose to say no they have been marginalised and criminalised.”

McGill Professor Colin Scott agrees that FPIC has not yet been institutionalised by states nor mainstreamed into business practice: “resource extractive multinationals continue to find it convenient to operate with the ‘sovereign’ blessing of states, via legal concessions that do not meet FPIC standards vis-à-vis indigenous communities.”

However Lewis Gordon, Director of the Environmental Defender Law Centre, argues the “deliberate misinterpretation” equating consent with consultation is being overturned: “Fortunately, national courts and human rights bodies are finally beginning to reject this misinterpretation of the word ‘consent’, and are recognizing that indigenous communities have the right to refuse consent and veto unwanted projects that threaten their environment and way of life.”

The wave of community referenda across Guatemala has involved over 700,000 people, and has occurred in the wake of widespread opposition to Guatemala’s controversial Marlin gold mine. The ILO ordered operations at the mine to be suspended, and while Marlin’s contamination of the local environment is hotly contested by its Canadian operator Goldcorp, a Tufts University study found a 400 percent increase of arsenic in the area’s groundwater between 2006 and 2009.

The mine is carved out of the mountains in the Department of San Marcos, straddling the line between the Mam and Sipakapa Maya Peoples, and the municipalities of San Miguel Ixtahuacán and Sipacapa. Javier de Leon of ADISMI (Association for the Integral Development of San Miguel Ixtahuacán) says families living close to the mine report that despite the company´s own human rights report recommending its Canadian operator Goldcorp cease purchasing property, “the company continues to coerce them to sell land to the mine”.

De Leon says that a team of employees known as the ‘land-buying unit’ approaches land-owners and warns them:  “if you don’t sell your land we won’t be responsible for what will happen to you, if you end up buried with your land under the ground that’s not our responsibility.” Explosives used in the surface and subterranean working of the mine have destroyed nine wells and damaged 200 houses, de Leon says.

Goldcorp recently signed an agreement for a very different type of extraction operation with the Wemindji Cree of northern Quebec, to mine gold and silver at the Éléonore site in the James Bay region. According to Goldcorp’s Brent Bergeron (in a Forbes.com article), this is a participatory model that the company seeks to export to their other operations: “We’ve actually had the Cree come down and visit our mine in Guatemala and go out and speak to the local communities”.

He compares the relationship with the Cree to a marriage: “You do have issues that come up but the greatest part about it is that you have a structure, you have committees in place so that when there are issues you have a medium to sit down with the Cree and talk to them, and discuss it and find solutions to it” Bergeron said.

McGill University´s professor of anthropology Colin Scott accompanied Cree Chief Rodney Mark on his visit, and says there are important differences between the two indigenous communities. He points to the James Bay Cree´s rights under the James Bay and Northern Quebec Agreement (1975), a comprehensive land claims settlement treaty, and the 2002 Agreement Concerning a New Relationship between the Gouvernement de Quebec and the Crees of Quebec, to argue that they have achieved a significant degree of unchallenged political power. This power is reinforced, Scott says, by “a political history in which they have managed to block major unwanted industrial development projects, at great economic and political cost to their proponents. Hence, the Eleonore project is not a very good test of a ‘new approach’ by industry, at least not one adopted on a voluntary basis. External interests have learned, when working on the territory of the Crees, that it can be less costly to get their consent first.”

While most of the Marlin mine lies in San Miguel Ixtahuacán, the other thirteen percent lies in the neighbouring municipality of Sipacapa. The Sipakapense-speaking Sipakapa Maya People organised a referendum against the mine in 2005, but Glamis Gold (the mining company that was later bought out by Goldcorp) secured an injunction against the vote with three days to go. The referendum proceeded nonetheless, resulting in a 98.5 percent majority against mining.

The Guatemalan Constitutional Court subsequently found that while Sipacapa’s referendum had been legal, its result was not binding because Guatemala had failed to enact legislation to enforce ILO 169. Mineral extraction remained the responsibility of the Ministry of Energy and Mines. Goldcorp continues to operate in Sipacapa.

Poisonous orchids

The town of San Miguel Ixtahuacán sits in a valley so deep that mountainsides shine through the nave windows of its church. Maudilia Lopez of the Parish’s Environmental Pastoral Committee accepts that money has entered the community from the mine, but sees it as part of an unwanted intrusion:

“The company talks about the primary effect of jobs, but there are many indirect secondary effects, and the company doesn’t accept responsibility for the growth of bars, domestic violence, malnutrition, and the lack of protection for children whose families have broken up.”

Lopez mourns the ‘broken harmony’ in the parish, speaking of divisions between families with people employed by the mine and Marlin’s opponents. “It’s a profound indignation that we feel, because we know the company comes here with its own interest, but it wears a mask. It takes advantage of the goodness and the values of the Mam People, it takes advantage of their big hearts.”

Umberto Velasquez volunteers in the same committee as Lopez, and critiques what he sees as the manipulations that the company’s social investments create: “They come in with their little projects, the company takes photos which they use internationally to boost their image and suggest they have the support of the community.”

What is it like for a parish organisation to campaign against a company that employs a thousand local community members? Velasquez admits this is difficult: “Some parishioners just want to hear what’s in the Bible, not what’s going on in their community. For us, the conclusion has been that we have to speak against injustice, and speak the truth. We look at Jesus himself - who was killed for speaking against injustice.”

Francisco Bamaca used to be a promoter of the Marlin Mine, paid to visit community meetings and argue the company’s case that it brings investment and prosperity to a poor region. Sitting outside his farmhouse a mile from the mine, in front of plastic vats he filled with water during the period his taps still flowed at midnight (the village’s old water system hasn’t worked since a new phase of underground mining began), he recalled how notes would be taken of the most outspoken opponents of the mine. These villagers would then be contacted and turned into Marlin’s protagonists.

Bamaca remembered how - before the company admitted to being a mining operation, when “people didn’t know what contamination was” - the company would hold “parties and celebrations in the community, giving sweets to children and beer to adults, knowing this is the local community way. They came in smooth.”

Bamaca says that later on, after the mine had started work, Bamaca was asked at a community meeting about the risk of contamination. 28 birds had died after contacting the tailings pond – a large man-made lake that catches the cyanide, arsenic, and heavy metal-laden water produced by leaching the gold from the rock. Finding no words to reply, he left the company soon afterwards.

Words in the rainforest

Guatemala signed up to ILO 169 as part of the Peace Accords to end the country’s civil war, and under the Convention is obliged to create legislation to realise the rights it outlines. Guatemala’s conflict claimed 200,000 lives, and ended with the state in almost total domination of the country. After peace was restored, former elements of a powerful security apparatus geared to domestic repression through massacres, assassinations and rape continued to operate unofficially, becoming known as the ‘hidden powers’.

Mayan Nobel Prize winner Rigoberta Menchu rues a missed opportunity for the country: “We should have taken extraordinary measures - as indicated by the peace accords - in the socio-economic sphere to benefit the population, showing that people would have a better life in peace than in war. The conflict had its causes in inequality, in dictatorship. These root causes were not attacked. The root causes are still valid.”

A little “Book of Indigenous Rights” was published by Guatemala’s National Council for the Fulfilment of the Peace Accords, and copies were left by Guatemalan Q’eqchi’ leaders as a gift to their Belizean Q’eqchi’ counterparts during an exchange. The book includes the Constitution of Guatemala, the Municipal Code, domestic decrees related to decentralisation and indigenous languages, and also international law including ILO 169, UNDRIP, and the universal declarations and covenants.

Manuel Caal at the meeting of Guatemalan and Belizean Q’eqchi’. Photo Robin Llewellyn. The Q’eqchi’ visit culminated in a meeting held in a village in the Belizean rainforest, opening with a reading from the Popol Vuh, the ‘sacred book’ of the Maya containing myth, history and law. The assembled leaders discussed the environmental damage inflicted on land taken from the Guatemalan Q’eqchi’ by palm oil plantations, ranchers, and nickel mines. For their part Manuel Caal of the Belizean Q’eqchi’ described securing title to their land in the Belize Supreme Court in 2007 and 2010, concluding that “we learned that the law is there to protect our rights”. Lately though, the extent of these victories has been questioned as Belize’s Prime Minister challenges the rulings by allowing oil company US Capital Energy to explore on the territory of villages party to the 2010 ruling.

On 5 February this year, two months after the Q’eqchi’ exchange, the village of Conejo gathered to discuss their response to the oil company’s incursion into their territory. The meeting was held in their village community centre, into which entered Manuel Choco, a former activist in Belize’s ‘Maya Movement’ and now permitting officer of the oil company. Two activists of the local indigenous organisation SATIIM (Sarstoon Temash Institute for Indigenous Management) turned on the voice recorders on their mobile phones.

US Capital Energy had met an enthusiastic response when it sought workers from the indigenous villages to open corridors through the rainforest along which to bury dynamite and to lay geophones. It had fostered relationships with the villages through gifts of computers to schools and accompanying festivities. The corridors or ‘seismic lines’ run through the territory of eight of the twenty-four villages granted collective title over their land, opening wide areas of rainforest up to poachers and illegal loggers. Despite the 2010 decision’s explicit injunction against the issuing of concessions authorizing resource exploration, the leadership of the Toledo Alcaldes’ Association that fought the 2010 case had been left politically isolated by the rush of young Maya men to jobs on the seismic lines. While Conejo’s land (subject to the earlier 2007 decision) was not included in the exploration permit, most of its men also worked on the seismic trails in the wider area.

Seismic team at work in the rainforest of southern Belize. Photo Robin Llewellyn. On 17 January seismic lines were discovered on the land of Conejo itself, prompting the village leadership to write a letter of objection to the company. The company claimed they had been cut by mistake, but asked permission to bury and operate dynamite along them. The leadership responded with a statement that the whole village needed to give its decision in the presence of a lawyer. On 2 February US Capital Energy separated Conejo’s men from the wider workforce and sacked them unless and until the community agreed a response to the company’s request.

This was the subject of the meeting into which Martin Choco entered and produced a letter, telling the villagers to sign it and get their jobs back. The letter gave US Capital Energy unlimited access to operate seismic lines on Conejo’s territory, condemned the leadership for exceeding their authority in sending their original letter of objection, and made no mention of company compensation for the cutting of the illegal lines. Acting on legal advice, the leadership suspended the meeting while Choco continued to collect signatures.

Choco’s superior is US Capital Energy’s representative in Belize, Alistair King, and two days later he said that the letter was written by the villagers themselves and “nothing to do” with the company. Although it lacked the signatures of a majority of Conejo’s adult population, he maintained that it granted his company sufficient authority to return to operate the lines that week.

While Alistair King was announcing the return of the company to Conejo’s land, and praising the value of having someone like Choco with the company, “who speaks the language”, Conejo’s current chairperson Enriqué Makin was walking between the thatched houses scattered through the rainforest. He held a letter, which read: “We did not give US Capital Energy our free, prior and informed consent to conduct seismic testing on our traditional lands affirmed by the Supreme Court of Justice of Belize on [sic] October 2007.” It was signed by the majority of Conejo’s adult population, prompting a showdown meeting between Belize’s Department of Geology and Petroleum, the village elders of Conejo, the chairperson and Alcalde, and Martin Choco. The company was ordered to cease operating on Conejo’s land and to remove the tags placed along the seismic lines marking the drilling holes for the burial of explosives.

“We are organised Peoples”

The victory marked a small victory for Maya activism, but it would be claiming too much to say it was part of a trend of rights being secured against extractive industries – the state is after all appealing against the rulings of its Supreme Court, and the Prime Minister refused to reappoint the Chief Justice who ruled in favour of the Mayan villages. If the Maya leadership that led the villages to the victories in the Supreme Court were left isolated as men from the rainforest villages rushed to work with the oil company, subsequent events showed that casual employment did not substitute for free, prior and informed consent. Conejo has arranged its own assessment of damages to be conducted on 9 July, which could lead to a punitive cost being assigned to the violation of this principle, as well as the simple price of the degradation of hunting lands.

The struggle to force companies and the state to recognise their legal obligations is shared by the Maya in Guatemala, and the continued progression of the Constitutional injunction against the mining law illustrates the political promise for indigenous activists of the space between their government’s official commitments and practical reticence. Speaking in Huehuetenango in the Western Highlands of Guatemala - the centre of indigenous opposition to mining - CPO campaigner Francisco Mateo said: “When the state signed indigenous rights treaties they never thought we as indigenous people would use those rights to hold the government to its commitments in those documents.”

On the global level, indigenous rights campaigners recommending citizens to urge their governments to sign up to ILO 169 face a similar task, since making signatory states adhere to the Convention once they sign is as great a challenge. The Netherlands is one of only four European countries to have signed the Convention, yet in May its Panamanian Embassy produced a Newsflash advising “There are opportunities for Dutch companies specialized in land relocation, waste management, waste water treatment, pipelines and port development” at the Cobre Panamá copper mine. The site of the proposed $6.2 billion operation in Colon Province neighbours indigenous communities who object to the plans as threatening their health, rights, and livelihoods. Such cases might speak partly of historical inertia as the new value of consent becomes mainstreamed by international bureaucracies, but they also show how frequently the right of indigenous peoples over their lands runs counter to the narrow immediate economic interests of businesses.

In the areas in which the protests occur more immediate dangers present themselves. Before she was attacked Yolanda Oquelí had spoken about the convoys of mining and heavily armed National Police personnel passing through her community at night, and the CPO’s Francisco Mateo made a similar warning: “There is legal persecution against many of our companions and the Guatemalan state is militarising our territories. We call on international human rights organisations and the international community to be vigilant about what is happening in Guatemala.”

Despite intimidation Mateo is bullish about the political prospects for the movement against extractive industries operating without the consent of local communities. What their opponents failed to appreciate, he said, was that “we aren’t groups, we are organised Peoples, defending the future of our People”.

Over in Belize, when asked how the village of Conejo had succeeded in protecting its rainforest to a greater degree than other communities, he said the answer lay in the degree of unity of its people. That unity, or organisation in Mateo’s words, is a variable that when unprotected by political institutions - as is so often the case with indigenous communities - can easily dissolve through the turning of local leaders or bilateral offers of employment from intervening companies. The value of free, prior and informed consent lies in its ability to ensure that the options facing indigenous communities are decided collectively, allowing a degree of meaningful deliberation in lieu of the official, political self-determination that they are generally lacking.

The organisation of communities had taken time, the lawyer Udiel Miranda had said, but it is a mobilisation now posing questions to extractive industries and the state across the country. If the murder of Tzunun and the shooting of Oquelí are the responses of some involved in this struggle, then they show that hidden powers have a lot to lose by the asking of questions whose answers are written in the laws to which the state has subscribed.

All images from Robin Llewellyn. All rights reserved. This article originally appeared on Open Democracy. Cross-posted to Intercontinental Cry with permission from the author.



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