Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

Other comments on C169

Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) received on 30 August 2019 and the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the Convention. Likewise, it notes the joint observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 30 September 2019, which were formulated together with the Maya Waquib’ kej National Coordination and Convergence, the Association of Lawyers and Notaries of Guatemala (NIM AJPU), the Cultural Survival (Sobrevivencia Cultural) Association, the Committee of United Agricultural Workers (CUC), the Political Alliance for the Women’s Sector (APSM), the Madre Selva Ecologist Collective and the Maya, Garifuna and Xinca Ancestral Authorities. The Committee notes the Government’s replies to the observations from the IOE and the CACIF, as well as to the observations from the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala, received on 30 October 2019.

The Committee also notes the supplementary observations received from the CACIF and the IOE on 1 October 2020. Lastly, the Committee notes the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala received on 16 October 2020. The Committee requests the Government to provide its comments in this respect.

The Committee notes that some of the information provided by the Government refers to measures taken within the framework of the health and economic crisis caused by the COVID-19 pandemic to provide advice to workers belonging to indigenous peoples on their labour rights and provide them with economic support. The Government indicates that, as one of the vulnerable groups affected by the situation, indigenous peoples have benefited from urgent action to address their financial needs.

The Committee notes that, in their supplementary observations, the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala allege that certain of the measures adopted by the authorities in the context of the pandemic, such as the restrictions on freedom of movement, have had a disproportionate impact on the economic situation of rural indigenous communities. The trade union organizations also allege that certain indigenous communities have not benefited from health protocols to combat COVID-19 or from educational measures, such as courses via television, to which they did not have access. The Committee trusts that within the framework of the measures that the Government has reported have just been taken, it will be ensured that indigenous peoples benefit from appropriate protection against the COVID-19 pandemic and its consequences.

Articles 2 and 33 of the Convention. Coordinated and systematic action. Institutions and national policy for indigenous peoples. In its earlier comments, the Committee noted the creation of the Office for Indigenous Peoples and Interculturality and of the process engaged for the development of the Indigenous Peoples and Interculturality Policy. It also noted the information regarding institutional instability, and the lack of a solid legal framework, budget and personnel to attend to the demands of the indigenous peoples. Accordingly, the Committee requested the Government to ensure the effective coordination and harmonization of the activities carried out by the different institutions responsible for implementing the rights provided in the Convention, defining their legal framework and ensuring the required resources.

The Committee notes from the Government’s report the establishment in January 2019 of the Special Social Development Office to replace the Office for Indigenous Peoples and Interculturality. The mandate of the new Office, which includes the Vice-President of the Republic, is to provide technical guidance on the design of development policies for indigenous peoples, coordinate the design and management of an action plan for indigenous peoples and interculturality, and support the development of indigenous institutions. The Committee notes that the Office has established six thematic working groups for the most excluded and vulnerable indigenous peoples, including the thematic working group on indigenous peoples. The mandate of this working group includes improving mechanisms for the management of the services provided by State institutions to indigenous peoples, promoting action for the development of consultation processes and a legislative agenda focused on indigenous peoples. The Committee notes the supplementary information provided by the Government in 2020 in which it indicates that responsibility for the thematic working group on indigenous peoples has been transferred to the Ministry of Labour and Social Welfare. It also notes the information on the activities and meetings held by this working group to address issues relating to the rights of indigenous peoples (such as their labour rights, the coordination and language training of personnel in State bodies that provide public services in indigenous communities, and the enforcement of judicial sentences). The Committee also observes that, in accordance with its mandate of inter-institutional coordination and cooperation, the working group carried out an orientation exercise with its members to identify areas for intervention in line with national priorities and indicators focusing on indigenous peoples.

The Committee notes from the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala that there are many dispersed, weak, underfunded and unstable indigenous institutions and services, a situation which hampers the establishment of effective public policies for indigenous peoples; they add that there is no effective mechanism enabling indigenous peoples to participate in areas of interest to them.

The Committee notes the changes made to the institutions competent to deal with matters relating to the peoples covered by the Convention, and particularly the establishment of the thematic working group on indigenous peoples in the Ministry of Labour and Social Welfare. The Committee trusts that the establishment of the thematic working group will contribute to the development of a robust and stable institutional framework for indigenous peoples. In this regard, the Committee requests the Government to provide information on the action taken by the thematic working group for indigenous peoples to ensure that the many bodies responsible for the matters covered by the Convention take systematic and coordinated action in cooperation with indigenous peoples. The Committee once again requests the Government to provide specific information on the means and resources available to the thematic working group for indigenous peoples and the other institutions dealing with matters concerning indigenous peoples to enable them to discharge their mandates, and information on the analyses conducted on the results of its actions.

The Government indicates that the formulation of the national policy for indigenous peoples was under the direction of the Office for Indigenous Peoples, and that its development is now the responsibility of the thematic working group for indigenous peoples. The Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate in their observations that neither the indigenous peoples nor the trade unions have been consulted on the proposed policy. In reply to these observations, the Government reports that the indigenous peoples have participated in the formulation of the policy since 2014 through community consultation days held in different locations to facilitate access and participation by local leaders. It adds that, for the holding of the community days, support was sought from institutions and organizations with a presence in the communities, such as the Academy of Maya Languages of Guatemala, the Office of the Defender of Indigenous Women, indigenous municipalities and local indigenous organizations. In its supplementary information, the Government indicates that the subject of the draft policy on indigenous peoples and interculturality 2019–2032 continues to be on the agenda of the thematic working group, which has established an inter-institutional steering committee with members of the General Secretariat of Planning and Programming of the Office of the President. However, this action has been left pending by the declared state of emergency in March 2020 due to the COVID-19 pandemic.

The Committee requests the Government to continue providing updated information on the progress made in the adoption of the policy on indigenous peoples and interculturality, indicating precisely how the participation of indigenous peoples has been secured in the development of the policy throughout the national territory, the contribution of these peoples to the draft policy and when it is envisaged that the policy will be finalized.

Implementation of the Peace Agreement. In its previous comments, the Committee referred to various commitments drawn up as part of the Agreement on Identity and Rights of Indigenous Peoples, part of the Peace Agreements of 1996, which have not been met, and it requested the Government to provide information on the measures adopted for their implementation. The Government reiterates that the Secretariat for Peace is responsible for follow-up and for coordinating the implementation of the Agreement on Identity and Rights of Indigenous Peoples, also providing technical, professional and logistical support. The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its 2019 concluding observations regarding Guatemala, reiterated its concern at the scant progress in implementing the Agreement on Identity and Rights of Indigenous Peoples, and at the absence of a human rights and gender focus in the implementation of the National Reparations Programme (Document CERD/C/GTM/CO/16-17). In the written information communicated to the Committee on the Application of Standards of the International Labour Conference in 2019, the Government reaffirmed its unrestricted interest and commitment in taking the necessary actions to give continuity to the fulfilment of those commitments that are pending or partially fulfilled. The Committee requests the Government to intensify its efforts to implement the Agreement on Identity and Rights of Indigenous Peoples, with the participation of the indigenous peoples, and to provide information on progress achieved, pointing to possible obstacles to its full implementation. The Committee also requests the Government to communicate information on the activities of the national compensation programme for victims of the armed conflict belonging to the indigenous peoples.

Article 3. Human rights. In previous comments, the Committee expressed its deep concern at the considerable increase in acts of violence and repression of social protests by indigenous peoples, and firmly urged the Government to take measures to investigate the acts of violence and to set in motion the relevant judicial proceedings to identify and penalize the perpetrators. The Committee notes the information provided by the Government on the current situation of the investigations undertaken by the Office of the Public Prosecutor and the progress in the criminal proceedings relating to four murders and attacks on the physical integrity of leaders and defenders of the indigenous peoples. It also notes the information provided by the Deputy Ministry of Security of the Ministry of the Interior on the risk analyses carried out by the Department for the Protection of Persons and Security and the security measures adopted for the family members and persons close to the murdered leaders. The Government indicates that since 2015 there have been no investigations directly related to the repression of social protest by indigenous peoples. The Committee also notes the information provided by the Office of the Public Prosecutor concerning 11 open cases of murder and threats against defenders and/or leaders of indigenous peoples, which are under investigation. With regard to the murder of indigenous persons during the social protests in Totonicapán in October 2012, referred to by the Committee in previous comments, the Government reports that the seven persons accused of those crimes have been placed under measures alternative to pretrial detention ordered by the criminal court of first instance. An appeal against those measures has been filed by the Office of the Public Prosecutor and the Association of 48 Cantons of Totonicapán.

The Committee notes from their observations that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala refer to the murder of two elected mayors of Maya origin, as well as to the persecution of indigenous communicators. It also notes, from its 2019 concluding observations concerning Guatemala, that CERD remains seriously concerned at the acts of violence, threats and attacks against indigenous and Afro-descendent leaders and rights defenders, and also at the improper use of criminal procedure to criminalize those defenders (CERD/C/GTM/CO/16-17). Moreover, the United Nations Committee against Torture (CAT), in its 2018 concluding observations on Guatemala, indicates that private security companies sometimes took on the functions of the National Civil Police, creating an environment of intimidation amongst the indigenous communities (CAT/C/GTM/CO/7). The Committee notes that the Government, in the written information submitted in 2019 to the Committee on the Application of Standards, refers to the development of a Public Protection Policy for Human Rights Defenders in Guatemala, and to the dissemination, at the national level, of the Guatemalan system for monitoring the recommendations of the international human rights protection systems.

The Committee notes this information and reiterates its deep concern at the persistent reports of murders and attacks against defenders of indigenous peoples and indigenous communicators, and also at the absence of information on judicial decisions determining responsibilities and penalizing the perpetrators. The Committee recalls that the rights enshrined in the Convention can only be exercised where fundamental human rights, especially those regarding life and security of the person, are fully respected and guaranteed. The Committee therefore once again firmly urges the Government to intensify its efforts to ensure progress in the investigations and proceedings to identify and penalize the perpetrators and instigators of the acts of violence and persecution of defenders of indigenous peoples and indigenous communicators. The Committee also requests the Government to provide information on the progress made in the adoption of the Public Protection Policy for Human Rights Defenders and the action envisaged under that policy to protect defenders of indigenous peoples’ rights.

Article 6. Appropriate consultation procedures. The Committee recalls that it has been raising the question of adopting appropriate consultation procedures in its comments for a number of years. In its previous observation, the Committee noted the existence of two Bills before Congress on consultations with indigenous peoples, but at the same time noted that the Government had not provided information on how indigenous peoples had been consulted regarding the Bills. The Committee also noted the related rulings of the Constitutional Court on the need for Congress to adopt legislation implementing consultation with indigenous peoples, as well as the social partners’ concerns at the lack of a regulatory framework for such consultation, developed in consultation with the indigenous peoples. The Government indicates that since 2007 five Bills on consultation have come before Congress. The Committee observes that the Government has not provided information on the current situation with regard to those Bills, nor on the consultation processes with indigenous peoples on their content. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that indigenous organizations rejected the consultation Bills, and that an attempt had been made to take the mere presence of indigenous peoples at the events organized by the Ministry of Labour and Social Welfare as signalling their support for the Bills. The Committee also notes from its observations that the CACIF recognizes the efforts made by the Executive to promote a procedure that would give legal certainty to the process of prior consultation. Nevertheless, the Committee reiterates its concern at the absence of an established procedure on the right to consultation, a situation which has led to contradictory legal rulings. In reply, the Government indicates that the Congressional Labour Committee convened the representative organizations of indigenous peoples and interested bodies to a public hearing in October 2019 to disseminate and discuss the content of a consultation Bill. The Committee notes, from the Government’s reply to the trade union’s observations, that the convocation was for a one-day hearing, it was written only in Spanish and restricted participation by indigenous peoples to two persons per organization. In the supplementary information provided in 2020, the Government provides a copy of the above-mentioned Bill submitted to the Legislative Steering Committee of Congress on 22 October 2019. The CACIF, in its 2020 observations, refers to the advisory opinion issued by the Constitutional Court in July 2020, in which it reiterates that the consultation procedure must be regulated by the Congress of the Republic through a legal provision, and emphasizes the importance of adopting legislation containing the necessary provisions to establish a consultation procedure in the country.

The Committee recalls that it is important for governments to establish, as a matter of priority and with the participation of the indigenous and tribal peoples, appropriate procedures for consulting the representative organizations of these peoples. In this regard, it reiterates the importance of holding prior consultations with the indigenous peoples before establishing those procedures (see General observations of 2010 and 2018). It also recalls that the consultations must be formal, full and aimed at producing genuine dialogue between governments and indigenous peoples, for which sufficient time must be given to these peoples to organize their own decision-making processes and to participate effectively in the decisions adopted. Based on these criteria and the information provided by the Government and the social partners, the Committee once again urges the Government to institute a consultation process with indigenous peoples with a view to discussing and subsequently adopting an appropriate consultation procedure with indigenous peoples, and requests the Government to provide information in that regard. The Committee encourages all interested parties to make every effort to participate in good faith in the process, with the aim of engaging in constructive dialogue that will lead to positive results. The Committee reiterates its request for information on the consultation processes engaged with the indigenous peoples, the methods employed, the entity directing the processes and the framework supporting them.

Article 14. Lands. In its previous comments, the Committee noted that the information provided by the Government on the implementation of the Programme for the regularization and allocation of State land showed no progress in terms of identifying and registering the communal lands of the peoples covered by the Convention. The Committee requested the Government to adopt measures without delay to protect the land rights of the indigenous peoples, and to provide information on the areas of lands titled, together with information on the application in practice of the national regulations on communal lands. The Government indicates that under the specific Regulation for the recognition and declaration of communal lands of 2009, the Cadastral Information Registry (RIC) had visited the communities to disseminate the Regulation and had conducted initial surveys of the communal lands. The Committee notes that the regulation cited establishes the requirement of consultation with the indigenous communities prior to cadastral survey in respect of lands the property of, in possession or tenure of, those communities. Between 2005 and 2019, the RIC carried out 36 surveys in the same number of communities where the lands could potentially be declared communal, and 11 communities have been thus recognized. In the written information submitted in 2019 to the Committee on the Application of Standards, the Government indicated that, given the socio-cultural characteristics of the country, the process for the recognition and declaration of lands as communal is slow. The Committee urges the Government to intensify its efforts in adopting the measures necessary to accelerate the process of identification, titling and registration of the lands that the indigenous peoples have traditionally occupied. In that regard, the Committee requests the Government to provide detailed information on progress made and the difficulties arising in those processes, and also on the manner in which indigenous peoples participate in their implementation.

In its previous comments, the Committee noted that the Secretariat for Agrarian Affairs had made efforts to facilitate the settlement of agrarian disputes, and requested the Government to provide information on resolved and pending conflicts. The Government replies that between 2015 and 2019, the Secretariat for Agrarian Matters dealt with a total of 1,484 cases, involving 2,149 persons belonging to different ethnic communities. It also informs the Committee that the Presidential Dialogue Commission, within which different Government entities and civil society groups interact, has taken up ten cases related to land and natural resources conflicts. The Committee notes that the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate the persistent lack of protection of the collective property of indigenous peoples. Moreover, it further notes that CERD, in its 2019 concluding observations regarding Guatemala, refers to reports that indigenous peoples have been forcibly evicted from their territories without appropriate legal protection and, in some cases, through the use of excessive force (CERD/C/GTM/CO/16-17). The Committee urges the Government to take the appropriate measures to investigate the cases of eviction involving indigenous communities and to ensure that those communities have adequate means of defending their rights. The Committee requests the Government to continue providing information on the number of land conflicts dealt with and resolved through the efforts of the Secretariat for Agrarian Matters and the Presidential Dialogue Commission, giving examples of agreements reached.

Articles 6 and 15. Consultation, natural resources. Sacatepéquez cement plant. Since 2011, the Committee has been noting the conflict in San Juan Sacatepéquez related to the project to construct a cement plant and the Government’s attempts to promote dialogue between the enterprise mounting the project and the indigenous communities. In its last comments, the Committee requested the Government to provide information on the Peace and Development Framework Agreement signed between the San Juan Sacatepéquez municipality, the Government and 12 indigenous communities under which it was agreed to foster a climate of trust, seek out-of-court solutions to criminal proceedings, and aim to provide special assistance for victims of the cement plant construction. In that regard, the Government replies that in 2017 and 2018 the Presidential Dialogue Commission had approached the actors interested in transforming the conflict and letters of understanding had been signed, reaffirming cooperation between the communities, the Cementos Progreso Company, responsible for the cement plant, and the municipality of San Juan Sacatepéquez. It indicates that the enterprise, in coordination with the municipality, continues to undertake projects that are beneficial to the communities of Asunción Chivoc y Cruz Blanca, las Trojes 1, Santa Fe Ocaña, and Pajoques y Pilar 1. The Committee duly notes the Government’s indication that dialogue has been hampered by demonstrations led by mayors and community leaders against the regional ring road projected by the cement company in San Antonio Las Trojes. It notes from the observations of the Autonomous Popular Trade Union Movement and the Global Unions of Guatemala that conflict and violence persist between those in favour and those against the projects of the Cementos Progresos enterprise; and that some members of the San Juan Sacatepéquez communities, who had engaged in passive resistance, have been victims of human rights violations. The Committee, while taking due note of the Government’s reaffirmed commitment to implement an immediate action plan answering to the communities’ concerns with participation, compromise and a role for the communities and their representatives, observes that some indigenous communities are still in conflict with the local government regarding the San Juan Sacatepéquez cement plant project. The Committee therefore encourages the Government to continue taking all necessary measures to restore the climate of trust and dialogue between the local government, the enterprise and all the communities affected by the project. The Committee requests the Government to provide specific information on progress in fulfilling the Peace and Development Framework Agreement, and the ways in which the indigenous communities concerned have been involved in its implementation. It also requests the Government to provide information on the measures taken to investigate the allegations regarding violations of the rights of members of indigenous communities communicated by the trade unions.

Review of mining legislation. In its previous comments, the Committee reminded the Government of the need to take steps to bring the mining legislation into line with the Convention’s requirements of consultation and participation. The Committee notes that the Ministry of Energy and Mines has set up a Revision Committee to draft reforms of the Mining Act with a view to including the content of Articles 6 and 15 of the Convention. It notes that six reform initiatives of that Act are currently before Congress, together with a number of Constitutional Court rulings setting forth consultations with the communities affected by the mining projects. In its observations, the CACIF stresses the innumerable economic losses, including the loss of jobs, brought about by the suspension of the mining projects in the absence of a clear consultation process. The Autonomous Popular Trade Union Movement and the Global Unions of Guatemala indicate that the Government has not complied with the order to hold consultations issued by the Constitutional Court in respect of various mining projects, and that the territories inhabited by the indigenous peoples continue to be laid open for extractive projects, with no participation by the communities affected. In that connection, the Government replies that in the absence of legislation on consultation in the country, the Constitutional Court’s guidelines have been followed, and that the Ministry of Energy and Mining has ensured the establishment of forums for the inclusion and participation of indigenous representatives in areas where they can influence the projects.

The Committee notes with concern the ongoing lack of a mechanism for clear and systematic consultations with the indigenous peoples applicable to the natural resources extraction projects in their territories, resulting in a number of judicial rulings of non-compliance with the obligation to consult. In this regard, the Committee once again urges the Government to take all measures necessary to ensure that the mining legislation is in accordance with Articles 6 and 15 of the Convention and that appropriate consultation procedures with the indigenous peoples are in place, designed in consultation with the peoples in question, in coordination with all institutions concerned, and aimed at establishing a climate of trust and legal certainty. The Committee emphasizes that the establishment of effective consultation procedures helps to prevent and resolve conflicts through dialogue, and reduces social tension.

The Committee hopes that the technical assistance that the Office has been providing the Government for the implementation of Convention No. 169 will help to address the matters raised in its comments and promote the full application of the Convention, and particularly the rights of the indigenous peoples enshrined therein.

The Committee is raising other matters in a request addressed directly to the Government.