REPRESENTATION (article 24) - GUATEMALA - C169 - 2007

Federation of Country and City Workers (FTCC)

Closed

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Report of the Committee set up to examine the representation alleging non-observance by Guatemala of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC)

Report of the Committee set up to examine the representation alleging non-observance by Guatemala of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

I. Introduction
1. In a communication dated 15 March 2005, the Federation of Country and City Workers (FTCC), invoking article 24 of the Constitution of the International Labour Organization, presented the International Labour Office with a representation alleging that the Government of Guatemala has not complied with certain provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169). In a communication dated 22 August 2005, the FTCC sent further information that was added to the first communication. In paragraphs 7 and 8 below, indications are provided in the communications containing additional information received after the representation was found to be receivable and on the observations made by the Government.
2. The Indigenous and Tribal Peoples Convention, 1989 (No. 169) was ratified by Guatemala on 5 June 1996 and the Convention is still in force in that country.
3. The provisions of the Constitution of the International Labour Organization relating to the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed for representations is based on the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the ILO Constitution, as revised by the Governing Body at its 291st Session (November 2004).
5. In accordance with articles 1 and 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the communications, informed the Government of Guatemala thereof and brought the matter before the Officers of the Governing Body.
6. At its 294th Session (November 2005), the Governing Body, on the recommendation of its Officers, decided that the representation made by the FTCC was receivable and appointed a tripartite Committee for its examination, made up of Ms Socorro Rovirosa (Government member, Mexico), Mr Jorge A. de Regil (Employer member, Mexico) and Ms Nair Goulart (Worker member, Brazil). Subsequently, Mr Juan Manuel Sánchez Contreras (Government member, Mexico) replaced Ms Socorro Rovirosa.
7. In a communication dated 19 December 2005, the Office invited the Government to present its observations concerning the representation. In a communication dated 13 February 2006, the Government forwarded its observations.
8. On 14 March and 6 April 2006, the FTCC sent two additional communications. The Government provided its observations on these communications on 18 July 2006.
Examination of the representation
A. Allegations made by the complainant
9. In its communication, the complainant organization alleges that on 13 December 2004, the Government of Guatemala, through the Ministry of Energy and Mines, issued an exploratory mining licence for nickel and other minerals to the Izábal Exploration and Exploitation Mining Corporation (EXMIBAL), now called the Guatemalan Nickel Corporation (CGN), authorizing it to begin exploratory mining operations on the land of the indigenous Maya Q'eqchi people in the El Estor municipality in the department of Izábal, without having gone through the prior consultation procedure with the people concerned. Within the zone covered by the licence, there are 19 indigenous communities: Esperanza, Sarabia Chacalté, Tambul se Guamó, Lote 4 Agua Caliente, Nueva Jerusalén, El Chorro, Semuc Lote 5, Searanx, San Luis Chakpaila, Lote 9 Agua Caliente, Santo Domingo, Sexán, Rio Sauce Sexán, Selich, Semuy, Sechina, Las Nubes, Sakarilá and Nueva Sakarilá.
10. According to the complainant organization, the Government of Guatemala issued mining licence LEXR-902 without taking coordinated action to protect the rights of the peoples concerned, without respect for their social and cultural identity, their customs, traditions and institutions, thereby contravening its obligation to adopt measures to safeguard the integrity of the indigenous peoples and without any consideration of the integrity of the Maya Q'eqchi people in general and the wishes expressed by them. The complainant organization alleges that these actions are in violation of Article 2, paragraphs 1 and 2(b), Article 4, paragraphs 1 and 2, and Articles 6, 7, 13, 14, 15 and 17, paragraph 3, of the Convention.
11. The complainant organization indicates that, according to the exploration licence, work must commence within 90 days of the licence being granted and that this work consists of opening trenches throughout the area of exploration. The communities living in that area farm maize, coffee and cardamom and fear that the exploration work will harm their crops, infrastructure and their cultural coexistence. The FTCC adds that it has worked with the communities on farming activities, and particularly cardamom, the sale of which provides the means of subsistence for the communities.
12. The FTCC says that it has been working with a number of communities within the licensed area on procedures relating to the ownership of their land and labour organization since 1998, and that granting the exploratory mining licence has had an adverse effect on the historic work that those communities, with the assistance of the FTCC, were undertaking in various public bodies to legalize their land. With the Office of the Maya Q'eqchi Ombudsperson, the FTCC is developing training activities on the rights of indigenous peoples, particularly with regard to land. The FTCC indicates that, on the one hand, the Government of Guatemala, through the Lands Fund, is selling land to indigenous communities and, on the other, is granting licences for that same land to mining companies.
13. In additional documentation, (Endnote_1) the complainant organization indicates that in August 1965, the Government of Guatemala gave a 40-year mining licence to the EXMIBAL Corporation. The company later abandoned the project and in December 2004, as the licence was about to expire, the old project's lands were given to the Government in exchange for new three-year licences. The declaration maintains that, in spite of an agreement concluded with the company to support the project to compile cadastral information for the area covered by the mining licence where the communities are located, the company, bought by Skye Resources and called "CGN", pressurized the community of Las Nubes to renounce its rights, and that in the Cahaboncito area in Alta Verapaz, the CGN has taken land that several communities have leased for decades, leaving them with no possibilities for agriculture. The communication states that pollution of rivers, widespread death of fish and aquatic birds in Izábal lake and a major increase in deforestation have been observed.
14. In additional information dated 14 March and 6 April 2006, the complainant organization alleged that the Deputy Minister for Energy and Mines indicated on a local television channel that the consultation procedure relating to the project had been undertaken, which alarmed the representatives of the communities and led to the holding of a meeting of the representatives of the indigenous communities of El Estor on 12 March 2006 in the community assembly, which is the highest community authority. The proceedings were reported in a notarized document signed by the representatives.
15. According to the notarized document, "at no time did the Government authorities provide them with prior information on the areas covered by the licence, nor engage in a process of consultation of the Maya Q'eqchi population relating to the involvement of transnational enterprises in the exploration and exploitation of the mineral, water and forest resources in the municipality of El Estor".
16. They affirm that their indigenous communities, peoples and nations have maintained continuous historic possession of the land that they occupy in the department of El Estor and that they intend to conserve, develop and transmit the land to future generations as a basis for their continued existence as a people. They indicate that they were not provided with prior information on the areas covered by the licence and that consultations were not held with the Maya Q'eqchi population. They call for compliance with article 67 of the Constitution, under the terms of which "the lands of (...) indigenous communities (...) shall benefit from the special protection of the State (...) which shall guarantee their possession and development", "indigenous and other communities which occupy lands that have historically belonged to them and which they have traditionally administered in a particular manner, shall maintain this system". They affirm that Articles 15 and 16 of the Convention have been violated. They categorically assert, as the representatives of their communities, their refusal to accept mining activities until the State guarantees them legal title to the lands that they have historically owned.
17. In conclusion, they indicate that they have resolved in the form of a community assembly, as the highest community authority, not to accept consultations unless: (1) the fullest information is first provided in the Maya Q'eqchi language on the licences granted for the use of natural wealth, especially in El Estor; and (2) they are guaranteed the legal security of their lands.
18. In the communication of 6 April 2006, the FTCC indicates that officials of the Ministry of Energy and Mines have visited the communities in the region and, far from providing them with information on the envisaged mining project or engaging in objective consultations based on Maya Q'eqchi traditions and customs, they endeavoured to deceive the members of the community so that they would accept a project although they had not been informed of its impact. A report by the Q'eqchi Ombudsperson attached in which, according to the FTCC, action of the Ministry of Energy and Mines, the municipality of El Estor, the mining company and its consultants is described demonstrating lack of transparency and bad faith. They claim that these pretend "consultations" recorded in reports signed without having been read or brought to the knowledge of the communities, constitute violations of the human rights of the indigenous peoples.
19. The report refers in particular to a meeting held in Rio Sauce Sexan on 29 March 2006 and a meeting convened by Monkey Forest Consulting Ltd (MFC). It is reported that those present included the Foundation Rax Che', the firm Consultora y Tecnología ambiental (CTA), three officials from the municipality of El Estor and the Ministry of Energy and Mines. The fundamental criticisms include: (1) the presentations were exclusively in Spanish and there was insufficient assistance from translators; (2) the meeting lasted four hours in a small house in which the members of the community listened for four continuous hours standing up and neither the space available nor the schedule were suitable for such a presentation or for the assimilation of the information by the members of the community; (3) there was a very low level of participation by men of the community (10 per cent) and none by women; (4) the indigenous peoples were not listened to, but were told that "we are here so that questions can be asked", which was in violation of the rights of indigenous peoples because questions were asked about matters of which they logically had no knowledge and on which they had not been informed previously; (5) they were made to sign a report without being able to read the contents; and (6) at no time were they informed that consultations were being held.
20. The FTCC also attaches a statement by the Maya National Congress of 24 November 2004 containing the following demands: (1) the adoption of policies for the establishment of the institutional mechanism for consultation for indigenous peoples; (2) compliance with article 46 of the Constitution under which Convention No. 169 prevails over domestic law, in this case, the Mining Act and its regulations; (3) the establishment of coherent policies and legal provisions which respect the indigenous peoples' vision of mother nature in the use, handling, conservation and administration of natural resources; (4) compensation for the damage caused in communities in which mining activities have been carried out; and (5) the repeal of the Mining Act, its regulations and related laws.
B. The Government's observations
21. The Government recalls that since 1998, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has made a series of comments on the application of the Convention in Guatemala and that the Government has taken significant action to improve compliance with the Convention, as acknowledged by the CEACR, although such action is not yet sufficient to achieve an adequate level of compliance. The Government hopes that the process of the examination of this representation will be directed towards the institutional strengthening of the country.
22. The Government considers that the matters set forth in the representation relate solely to Article 15, paragraph 2, of the Convention. It indicates that the licence referred to by the FTCC was issued on the basis that, at the time it was granted, the lands covered by the exploration zone were owned privately or by the State, but were not lands belonging to any of the communities supporting the representation. The Government states that the 19 communities which signed the representation are located in the following categories of land: privately owned land (the community is settled on land registered as the property of a private individual), land owned by the State and waste land (owned by the State but not yet registered). It adds that some of the communities are not located on lands covered by the licence, but only cultivate these lands.
23. The Government concludes that when the exploration licence was issued, the lots were not yet the property of the communities which are supporting the representation and that the responsibility deriving from Article 15 of the Convention is not applicable.
24. It states that the real problem facing the communities is land ownership and occupation and that it is necessary to resolve demarcation disputes so as to be able to proceed with the adjudication of lands to the indigenous communities which have so requested. The Government emphasizes that it is engaged actively in resolving the problem of the lands of indigenous communities and that there has not been a violation of Article 15 or of any other provision of the Convention, as it granted the exploration licence to a mining company for lands owned by the State or privately owned.
25. The Government further notes that once the ownership and status of the lands is regularized, the indigenous communities will be able to set their own conditions to negotiate with the respective mining company if they so wish. The mining company can only undertake exploration with the authorization of the owner, otherwise it cannot enter private property.
26. Referring once again to the issue of ownership, the Government states that it is necessary to complete the compilation of cadastral information to resolve the problem of demarcation. It is essential to find a solution to the problem of the ownership of the lands that indigenous communities have been occupying illegally up to now and that the Government of Guatemala needs time to resolve the cadastral issues in the region. It emphasizes that there is no contradiction, as alleged by the complainant organization, between the granting of the exploration licence and the fact that four communities have embarked upon procedures for the adjudication of the ownership of the lands that they have been occupying illegally, since, if they do not own the lands there is no obligation to engage in consultations.
27. In its observations on the additional information, the Government indicates that during the information process a great fear was identified among the population of being removed from the lands that they occupied and that, after making it clear to them that the fear was unfounded, the Government has commenced the process of the demarcation of the lots that will be formally granted to them. It was emphasized repeatedly to the community leaders that they must not leave their lands and that when they have title of ownership it will be for them to decide whether they authorize mining companies to engage in mineral exploration and exploitation activities, and to establish the conditions for doing so, which may include participation as partners in the projects.
28. In other respects, it states that there is no proof that the exploration activities undertaken have caused the alleged ecological damage.
29. With specific reference to the licence (LEXR-902) granted to EXMIBAL, the Government notes that the company had been granted concessions by previous Governments for nickel exploitation in the department of Izábal, one of which expired in 2005 and the last one is due to expire in 2014, and that the companies operations were not subject to the requirement of consultation or the formulation of environmental impact studies as the licences were granted in 1974, while the Regulations on environmental assessment, control and monitoring were adopted in 2003.
30. EXMIBAL expressed the intention of recommencing operations in 2004, which was possible from a legal point of view. Nevertheless, the Ministry of Energy and Mines sought a mechanism through which the company could comply in the following areas: preparation of an environmental baseline study, formulation of an environmental impact study and participation in an appropriate consultation process organized in common accord between the Government and the communities affected.
31. Consequently, and under the agreement of 13 December 2004 between the company and the Government, EXMIBAL, which is now CGN, gave up the licences that were still in force, and the Ministry of Energy and Mines granted the mining exploration licence for a period of three years.
32. It adds that EXMIBAL-CGN, in the context of its corporate social responsibility programmes, carried out projects such as the installation of electricity, refurbishment of a hospital and a school, and that it has undertaken to carry out community development programmes and projects.
33. With regard to consultation, the Government indicates that activities were carried out by the mining company itself as part of the information and consultation process and that the Government provided information about the project and the licence through representative institutions, such as the Departmental Development Council, the Municipal Council, the auxiliary mayors and the communities which considered themselves to be affected. It adds that, as evidence of the above, reports (Endnote_2) are attached of the main meetings held as well as a copy of the Final Activity Report for the period January to April 2006 containing information on certain meetings and difficulties encountered in February and March 2006.
34. The Government refers in particular to report No. 4-2006 on the meeting held in Río Sauce Sexan on 29 March 2006, to which reference is made in paragraph 19. The report indicates that the meeting was held in a private house and that: (1) the CGN referred to the responsible investment of the Guatemalan Nickel Corporation, indicating that it was supported by the Canadian company Skye Resources, to the environmental impact study prepared by CTA and Klohn Crippen, Canada, and to the economic impact that it was hoped would be achieved; (2) the Director-General of Mining said that the licence covered 248 square kilometres and that the company would work in the subsoil, which is owned by the State, in compliance with the right of ownership of the inhabitants of El Estor, and that the company would leave the lands in the state in which it found them; (3) there was an intervention by the representative of the CTA, responsible for the environmental study; (4) the inhabitants of the community expressed their concern in relation to their lands and the answer was given that there was no danger as the licence issued was for exploitation, which did not interfere with ownership; (5) the Q'eqchi Ombudsperson did not intervene, indicating that no formal invitation had been received; (6) it was indicated that the problems related to cardamom were not attributable to the mining activities; and (7) translation was available.
35. The Government recalls that it has already requested ILO technical assistance to resolve the problem of holding consultations with indigenous peoples, and hopes that it will be provided in the very near future.
36. The Government of Guatemala set up a High-level Commission to address the issue of mining, and on 23 August 2005 the members of the Commission signed a document containing guidance for mining policy. The conclusion was reached that in order to promote the technical exploitation of minerals in accordance with environmental and human rights legislation and Convention No. 169, it is necessary to improve the legal framework currently governing mining. In its observations on the additional information provided, the Government notes that the proposed legal modifications include a specific transitional section respecting the consultation procedure.
37. In its observations in relation to the additional information supplied, the Government adds that, up to the month of June 2006, no individual or association had filed complaints relating to individual cases of violations of human rights, private property, personal safety or the workers of mining companies operating in the area. Neither the Q'eqchi Ombudsperson nor the FTCC had formally opposed the granting of licences in accordance with the national legislation, and if there had been any such opposition, the Ministry of Energy and Mines would have submitted the case to a judge, who would have determined the receivability of the matter.
38. Finally, the Government calls for the representation to be set aside as being without merit on the following grounds: (a) the licence was granted in relation to privately or State-owned lands; (b) the existence of environmental damage has not been demonstrated; and (c) several of the communities do not live in the affected areas, but only cultivate the land concerned. It requests that account be taken of the Government's undertaking to adopt measures for the regularization of land ownership where communities have applied for title to the land. It calls for the Government to be given the necessary time to complete the compilation of cadastral information which will bring an end to controversies relating to land demarcation, as this is the principal problem facing indigenous peoples in the region. It reaffirms its respect for indigenous communities and the lands that they occupy and calls for account to be taken of the work carried out by the High-level Commission, the support provided by the Government for the regularization of land title, the legal restriction placed on companies that they have to operate in lands that they own or where the owners authorize them to do so, and for the Government to be accorded the necessary time to build on the technical cooperation provided by the ILO and for this assistance to bring forth positive results.
C. The Committee's conclusions
39. The Committee notes the information and attached documentation provided by the complainant organization and the Government's reply and the documentation attached thereto.
40. Consultation. The Committee notes that the nub of the allegations relates to the alleged absence of consultation prior to the granting of the licence for mining exploration for nickel and other minerals, LEXR-902 of 13 December 2004, to EXMIBAL to commence mining exploration activities in the lands of the Maya Q'eqchi indigenous people.
41. Lands. Another essential issue to which the parties refer is the legal status of lands. In this respect, the Committee notes the indication by the FTCC that it has been working since 1998 with various communities in the area covered by the mining licence in relation to procedures to obtain ownership title for their lands, and that it does not appear coherent for the Government, on the one hand, to sell lands to the communities and, on the other, to cede them under licence to mining companies. It also notes the Government's indication that there is no contradiction between the granting of the licence for exploration and the fact that four communities are engaged in procedures for the adjudication of ownership of the lands that they are occupying illegally and that, in the view of the Government, as they do not own the land there is no obligation to engage in consultations. It notes the Government's reference to the need for the communities or their members to hold ownership title for the purposes of consultation.
42. The applicable provisions in this case are Articles 6, 7, 13, 14 and 15, paragraph 2, of the Convention.
Lands
43. The Committee notes that both the Government and the FTCC refer to the concern expressed by the indigenous communities relating to the legalization of their lands, the interference in this process that may be caused by mining activities and the risk that such activities may give rise to the relocation of the communities. It notes that the above organization is working with various communities in the area covered by the mining licence in relation to procedures to obtain title for their lands and the Government's statement that "the real problem facing the communities is land ownership and occupation and that it is necessary to resolve demarcation disputes so as to be able to proceed with the adjudication of lands to the indigenous communities which have so requested".
44. Under the terms of Article 14 of the Convention:
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. (...)
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
In accordance with these paragraphs of Article 14 of the Convention, the Committee considers that the Government should endeavour to speed up the processes of the regularization of title to the lands that the indigenous communities traditionally occupy and should ensure not only that their individual rights are guaranteed, but also their collective rights and the various aspects of their relationship with the land. Indeed, the rights to lands that are traditionally occupied as recognized by the Convention do not only relate to ownership and occupation, but also to the survival of indigenous peoples as such and their historical continuity.
45. The Committee welcomes the Government's reaffirmation of its respect for indigenous communities and the lands that they occupy and its support for the legalization of lands. It also notes the Government's indication that it requires time to undertake the regularization of lands. The Committee recognizes that the regularization of land ownership requires time, that the adoption of legislation is not sufficient in itself and that it is the outcome of a complex process. It also considers that indigenous peoples should not be prejudiced by the duration of this process. It would therefore be desirable to adopt transitional measures during the course of the process to protect the land rights of the peoples concerned. It also observes that the Government's expressed opinion that the lands traditionally occupied by the indigenous communities are held illegally, as they do not have ownership title, is not in conformity with the Convention, Article 14 of which recognizes the rights of indigenous peoples over the lands that they traditionally occupy.
46. In conclusion on this point, the Committee requests the Government to speed up the process of the regularization of title to the lands of indigenous communities in conformity with the provisions of Article 14 of the Convention and accordingly to adopt transitional measures to protect the land rights of the peoples concerned.
Consultation, lands and natural resources
47. The Committee notes the indication by the Government that the consultation envisaged by Article 15, paragraph 2, of the Convention is only required in relation to lands for which the indigenous communities hold title of ownership. It notes that according to the Government, at the time that the exploration licence was granted, the lots were not yet the property of the communities supporting the representation; therefore the responsibility deriving from Article 15 of the Convention is not applicable. In this case, it is necessary to apply the provisions of Articles 13 and 15 of the Convention, read in conjunction. Under the terms of Article 13:
1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.
2. The use of the term lands in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use. (Emphasis added.)
Article 15, paragraph 2, provides that:
In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities. (Emphasis added.)
48. The Committee therefore draws the Government's attention to the fact that, as set out in Article 13, paragraph 2, and Article 15, paragraph 2, of the Convention, and as reaffirmed repeatedly by the supervisory bodies, the Convention does not require indigenous peoples to be in possession of ownership title for the purposes of the consultations envisaged in Article 15, paragraph 2. The consultations referred to in Article 15, paragraph 2, are required in respect of resources owned by the State pertaining to the lands that the peoples concerned occupy or otherwise use, whether or not they hold ownership title to those lands.
Meetings
49. The Committee notes the information provided by the Government concerning a series of meetings held in February and March 2006 that the Government considers to constitute the provision of information and consultation, and it notes the preparation of an environmental impact study. The Committee notes the FTCC's repeated statements that these meetings were held without the provision of prior information on the areas covered by mining activities, the period was very short, the meetings were held with only certain communities, that there was no adequate translation and notification was not given that these were consultation meetings. It notes in particular that the information provided by the FTCC on the meeting of 12 March 2006 diverges considerably from that supplied by the Government on this subject. The fundamental differences between the information concern the manner in which the meetings were conducted. The Committee considers, however, that this does not constitute the main issue of the representation. The essential question is whether or not there was prior consultation and determining who should be consulted.
Prior consultation
50. The Committee is bound to observe that the meetings held in February and March 2006 do not fulfil an essential characteristic set out in Article 6 of the Convention, which is the requirement for prior consultation. It also notes that the Government only considered engaging in consultation with the members of communities that hold ownership title, which is not in conformity with Article 13, paragraph 2, and Article 15, paragraph 2, of the Convention.
51. Under these conditions, the Committee considers that it is not necessary to examine in detail the divergent information provided concerning the manner in which the meetings were held in order to determine whether they constituted consultation within the meaning of the Convention. As the Government only considered the application of Article 15, paragraph 2, in respect of lands for which the communities or their members held title of ownership, and the meetings were held in 2006, whereas the licence was granted in 2004, the Committee observes that there was no prior consultation within the meaning of the Convention and that the communities covered by Article 15, paragraph 2, read in conjunction with Article 13, paragraph 2, were not included. Moreover, as the exploration licence granted in December 2004 expires in December 2007, and an exploitation licence could be issued at that time, the Committee considers that prior to the delivery of any exploitation licence, consultation should be held with all the communities concerned, within the meaning of Article 13, paragraph 2, and Article 15, paragraph 2, whether or not they hold title of ownership, and that the communities should be compensated for any damage that the exploration may have caused. With regard to the environmental impact study, the Committee recalls that, as indicated repeatedly by the supervisory bodies, (Endnote_3) the environmental impact study does not replace the consultation and participation envisaged by the Convention, particularly in Article 15, paragraph 2, and Article 7, paragraph 3.
52. The Committee trusts that when engaging in consultation the Government will give effect to the criteria set out in Article 6 of the Convention, under the terms of which:
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (...)
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
It further hopes that account will also be taken of the essential criterion of participation, as set out in Article 7, paragraph 3, of the Convention:
Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities.
53. Recalling that the establishment of effective consultation and participation procedures contributes to preventing and resolving disputes through dialogue, attenuates social tensions and is the mechanism envisaged by the Convention to ensure that development plans and programmes are truly inclusive, the Committee emphasizes the need to: endeavour to achieve consensus on the procedures to be followed; facilitate access to such procedures through broad information; and create a climate of confidence with indigenous peoples which favours productive dialogue. The Committee considers that the development of a climate of mutual confidence is essential for any consultation process.
Other matters
54. With reference to the Government's statement that consultation was not required as the licence was a renewal of previous licences, the Committee considers that the renewal or extension of a licence constitutes a new action and is covered by the Convention. In examining an analogous situation, the Governing Body observed in its report that even though the Convention had not been ratified at the time that the agreement had been signed, the situation created by the signature of the agreement still prevails and the obligation to consult the peoples concerned does not only apply to the conclusion of agreements, but also arises on a general level in connection with the application of the Convention. (Endnote_4)
55. The Committee notes the Government's indication that the indigenous peoples have not availed themselves of the internal channels of legal recourse to oppose the project. It nevertheless observes that access to ILO supervisory machinery does not require the exhaustion of domestic recourse and that, in any case, the Mining Act does not yet provide for consultation with indigenous peoples in accordance with the terms of the Convention.
56. The Committee welcomes the Government's indication that it is engaged in the formulation of an Indigenous Peoples Consultation Bill and an amendment to the Mining Act to include consultation with indigenous peoples, as noted in the observation by the CEACR in 2006 on the application of the Convention in Guatemala:
The Committee [of Experts] notes that according to the Government, Guatemala is to have technical assistance from the Office with a view to developing a model for consultation that conforms to the Convention. In view of the abovementioned Indigenous Peoples Consultation Bill and the amendment of the Mining Act to include consultation, the Committee encourages the Government to pursue its efforts to obtain suitable instruments for consultation and participation which will attenuate disputes over natural resources and lay the foundations for inclusive development projects. It requests the Government to report on progress made and expected regarding these important issues.
57. The Committee notes that the Government requested ILO technical assistance to resolve the problem of consultations with indigenous peoples. It also notes the Government's call, in relation to its request for ILO technical cooperation, to be accorded the necessary time for this assistance to bring forth positive results. It notes with interest that the Office has already commenced and is pursuing the provision of technical cooperation: in November 2006, a seminar was held on the Convention and consultation was organized with the support of the Office. The Committee hopes that this cooperation will continue and will contribute to laying the foundations for the effective application of the Convention.
58. The Committee observes that the Government and the FTCC both make requests to the Committee, the former to ensure that "the process of the examination of this representation will be directed towards the institutional strengthening of the country" and the complainant organization for "the adoption of policies for the establishment of the institutional mechanism for consultation for indigenous peoples; (...) compliance with article 46 of the Constitution under which Convention No. 169 prevails over domestic law and, in this case, the Mining Act and its regulations; (...) the establishment of coherent policies and legal provisions which respect the indigenous peoples' vision of mother nature in the use, handling, conservation and administration of natural resources".
59. In view of the above, the Committee hopes that the Government will take coordinated and systematic action, as envisaged in Articles 2 and 33 of the Convention, for the development of inclusive mechanisms and that the reinforcement of participation by indigenous peoples in policies and programmes which concern them will serve to increase social cohesion. The Committee further hopes that its recommendations will contribute to the achievement of the objectives indicated by both parties, as noted in the previous paragraph.
The Committee's recommendations
60. The Committee recommends the Governing Body to approve the present report and, in the light of the conclusions contained in paragraphs 39 to 59 above:
(a) to request the Government to give full effect to Article 15 of the Convention and to engage in prior consultation in cases of exploration or exploitation of natural resources which may prejudice indigenous and tribal communities, and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans;
(b) to request the Government to endeavour to resolve any consequences of the granting of the exploration licence including by assessing, in consultation with the communities concerned, whether and to what degree their interests have been prejudiced, and where such prejudice is found, to ensure that fair compensation is provided, in accordance with Article 15, paragraph 2, of the Convention; and, it hopes that, in seeking solutions to the problems affecting communities which occupy or otherwise use lands for which the licence covered by the representation has been granted, the Government should go through representative institutions or organizations so as to be able to establish and maintain a constructive dialogue under the terms of Article 6 so that the parties concerned can seek solutions to the situation faced by these communities, taking into account for this purpose paragraph 53 above;
(c) to urge the Government to initiate a process of consultation before granting any exploration and exploitation licences covering the lands referred to in the representation and to maintain consultation and participation procedures with all the communities concerned which occupy or otherwise use these lands, whether or not they hold title of ownership, taking into account for this purpose paragraph 53 above;
(d) to request the Government, in consultation with indigenous peoples, to take the necessary measures to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention;
(e) to request the Government, in consultation with indigenous peoples, to adopt transitional measures to protect these rights while the process of the regularization of title to lands is being completed;
(f) to invite the Government to develop coordinated and systematic action, within the meaning of Articles 2 and 33, with the participation of indigenous peoples, when applying the provisions of the Convention;
(g) to invite the Government to make progress in the formulation and adoption of the Indigenous Peoples Consultation Bill and the appropriate regulation of consultations to be undertaken in the case of exploration or exploitation of natural resources (minerals, forests, water, etc.), in accordance with Article 15 of the Convention; this would foster the development of appropriate mechanisms for consultation and participation, thereby attenuating disputes relating to natural resources and laying the foundations for promoting processes of inclusive development;
(h) to invite the Office to pursue its technical assistance and cooperation with the Government so as to facilitate the establishment of the process of consultation envisaged in points (a), (b) and (c) above and to assist the Government in the formulation of the legislation referred to in point (g) above; and
(i) to invite the Government to supply information to the Office regarding the application of the aforementioned items for examination by the Committee of Experts.
61. The Committee requests the Governing Body to adopt the present report, and particularly paragraph 60 thereof, and to declare closed the present proceedings.
Geneva, 4 June 2007.
Points for decision: Paragraph 60;Paragraph 61.
Endnote 1
Declaration by the representatives of 20 Maya Q'eqchi communities in the municipality of El Estor (department of Izábal) and the municipality of Panzós (department of Alta Verapaz), who met in El Estor on 12 August 2005. The declaration took the form of an open letter addressed to the President of the Republic, the Minister of Energy and Mines and the Director of Skye Resources/Guatemalan Nickel Corporation from the elected representatives of 20 communities.
Endnote 2
Report No. 22-2005 of the municipality of El Estor and certified reports of the Ministry of Energy and Mines of 27 February 2006, 28 February 2006, 29 March 2006 and 28 April 2006.
Endnote 3
CEACR, 2005: The impact study carried out by the company is no substitute for the consultations required by Article 15, paragraph 2. This provision stipulates that "governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands". As the Committee has pointed out in other similar cases, responsibility for consultation lies with the Government, not the company. Furthermore, in establishing or maintaining procedures, governments must take into account the procedural requirements laid down in Article 6 of the Convention and the provisions of Article 7 of the Convention, according to which "Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities."
Endnote 4
Document GB.282/14/2, para. 30.