Demande directe (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Guatemala (Ratification: 1996)

Autre commentaire sur C169

Observation

Demande directe

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Article 1 of the Convention. The Committee notes the detailed information provided by the Government from the Statistical Compendium on Indigenous Peoples, compiled in 2015 by the National Statistics Institute. According to these data, 5,770,479 persons self-identify as belonging to the Maya, Xinka or Garifuna peoples (around 40 per cent of the population), the Government highlights, however, that the Academy of Mayan Languages of Guatemala indicates that the official percentage of indigenous peoples that live in the country does not correspond to the estimated numbers established by the Mayan linguistic communities due to factors related to the use of inadequate procedures and tools for census, sub-registry, as well as to factors related to the self-identification of the persons during the census. In this respect, the Government states that between July and August 2018, the XII Population Census was conducted, in the context of which an awareness-raising campaign was launched aimed at promoting self-identification among the indigenous peoples as a way of contributing to respect for their identity. The census included questions relating to the ethnic identity of persons, based on self-identification, mother tongue and attire. In this respect, the Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala regret that the awareness-raising campaign did not have greater communicative value and that indigenous organizations and authorities were not included. The Committee requests the Government to communicate the results of the XII Population Census of 2018, providing statistical data disaggregated by the indigenous communities covered, the regions of the country in which they live and their socio-economic conditions.

Articles 2 and 33. Commitments under the Peace Agreement. The Committee takes note of the adoption in April 2017 of the Political Peace Agenda 2017–2026, adopted in April 2017 by the Presidential Secretariat for Peace, which details the status of compliance with the Peace Agreements of 1996 in order to guide and facilitate implementation of pending commitments. In this respect, the Committee notes that according to that Agenda, of a total of 118 commitments drawn up as part of the Agreement on Identity and Rights of Indigenous People, 25 have been fully met while 56 have been partially met and 26 have not been met. The commitments that have been fulfilled are: the guarantee of free access for persons belonging to indigenous peoples to the various branches of public service; the establishment of offices for the defence of indigenous rights; the legal recognition of indigenous languages and the use of indigenous dress in all areas of national life; and the promotion of respect for cultural diversity in education plans. However, unfulfilled commitments include the recognition and protection of the different forms of spirituality practised by the Maya, Garifuna and Xinca people; the promotion of the use of information and communication technologies by the indigenous peoples, aimed at developing their identity; the recognition of the right of indigenous peoples, in the context of municipal autonomy, to decide on the development priorities relating to education, health, culture and infrastructure; and the establishment of an inventory on land tenure at the municipal level. The Committee requests the Government to provide information on the measures adopted to comply with all the commitments set out in the Agreement on Identity and Rights of Indigenous People, indicating the involvement of the indigenous peoples and their representatives in that respect.

Articles 6, 7 and 15. Consultations. Natural resources. Project for the construction of a cement plant in the San Juan Sacatepéquez municipality (department of Guatemala). Since 2008, the Committee has been examining the conflict situation relating to the construction of a cement plant in San Juan de Sacatepéquez. The Committee recalls that, in its ruling of 21 December 2009, the Constitutional Court ordered the holding of the consultations required by the Convention (Case No. 3878-2007). The Committee noted the various initiatives undertaken to facilitate dialogue and negotiations among the various interested parties and requested the Government to provide information on the measures taken to, within the framework of the dialogue mechanisms trusted by the parties, hold negotiations in good faith and in line with the Convention, in relation to the cement plant project.

The Committee notes the Government’s indication that progress has been made in the signing of a Peace and Development Framework Agreement by 12 Kackchiqueles communities, the San Juan de Sacatepéquez municipality and the Government. Under the “Peace” section of the agreement, the parties agreed in particular to: foster a climate of trust; seek harmony and rebuild the social fabric; establish out-of-court arrangements, where possible, instead of court proceedings; and establish special assistance for victims. Under the “Comprehensive development” section, communities gave their consent for a regional ring road and for the development of the San Gabriel Project, with direct and tangible benefits for the communities. In addition, the Government undertook to formulate and carry out an “immediate action plan” to respond to the communities’ requests, with the active participation and commitment of them and their representatives. In its observations, the Coordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF) considers that the Peace and Development Framework Agreement constitutes significant progress in the negotiations between the parties.

The Committee requests the Government to provide information on the implementation of the Peace and Development Framework Agreement, indicating how the participation of the peoples concerned is guaranteed in the measures adopted for that purpose, as well as on any obstacles encountered and the measures adopted to overcome them.

Article 8. Customary law. The Committee notes the Government’s indication that line 3.1 of the Strategic Plan 2015–2019 of the Public Prosecution Service covers the strengthening of relations between the Public Prosecution Service and the indigenous peoples for the coordination of cases before the indigenous and the formal justice system. In this respect, the Government emphasizes that the Ministry for Indigenous Peoples is competent to formulate coordination and communication mechanisms on indigenous peoples’ rights, between the justice institutions and the indigenous authorities. The Government also indicates that the 15 offices for the defence of indigenous rights of the Criminal Public Defence Institute continues to offer culturally and linguistically relevant assistance to persons belonging to the Maya, Garifuna, Xinka and Mestizo peoples. The Institute focuses on hiring indigenous persons who master the language of the region and who have an awareness of the issue of indigenous peoples’ rights. The Government provides information on the training activities carried out between 2015 and 2017 to strengthen the knowledge of public defenders, aides and administrative personnel in providing culturally relevant assistance. It also provides a list of culturally relevant rulings imposed by various jurisdictional bodies.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that the state institutions still do not recognize indigenous peoples’ right to operate their own justice system, and report cases in which indigenous justice was not recognized.

The Committee requests the Government to continue taking measures to promote coordination and communication mechanisms between the justice institutions and the indigenous authorities so that they take into consideration indigenous peoples’ customs and customary law when national legislation is applied to them. Please provide examples of decision in which the customs or customary laws of indigenous peoples have been taken into consideration.

Article 12. Legal proceedings. The Committee notes the Government’s information that, in order to facilitate indigenous peoples’ access to justice that is geographically, linguistically, culturally and judicially relevant, the indigenous affairs unit of the judiciary became the Indigenous Peoples’ Department. This institution coordinates the implementation of the protocol for the provision of assistance to indigenous women in accessing justice. In addition, a centre was established for interpretation of indigenous peoples’ languages, based in nine departments, which has made a series of documents (glossaries, translations of rulings etc.). The Government reports that the Office for the Defence of Indigenous Women’s Rights promotes activities for the prevention of violence against indigenous women through the implementation of the Community Outreach Strategy in communities experiencing violence, and carries out actions to restore their rights.

The Committee notes that the Special Rapporteur on the rights of indigenous peoples, in her report on her visit to Guatemala in 2018, notes that, despite the efforts of the Government through the Public Prosecution Service to facilitate access to justice for indigenous peoples, discrimination and racism persist, particularly against indigenous women, when they apply to the courts at the local level (A/HRC/39/17/Add.3, paragraphs 81 and 82). The Committee encourages the Government to continue to take measures to guarantee effective access to justice for indigenous peoples in order to ensure that they can initiate individual or collective legal proceedings to effectively protect their rights.

Article 15(2). Mining concessions and hydroelectric projects. The Committee recalls that, since several years, it has been requesting the Government to take the necessary measures to bring the Mining Act into conformity with the requirements concerning prior consultation and participation in benefits set out in the Convention and other relevant legislation, particularly the General Electricity Act. Likewise, on various occasions the Committee has examined comments by trade unions on serious situations relating to the lack of consultation and the exploitation of natural resources, and has requested the Government to establish mechanisms for dialogue and participation which have the confidence of the parties, and can be used to determine whether and to what degree their interests have been prejudiced. The Committee requested, in particular, information on the consultations and participation by indigenous communities in the benefits deriving from the mining activities of the Marlín mine in San Miguel Ixtahuacán (department of San Marcos) and the mining of nickel and other minerals in the territory of the Q’eqchi people in the municipality of El Estor (department of Izábal). In relation to the nickel mine in the municipality of El Estor, the Government indicates that, before granting a mining permit, it carried out prior consultations with the indigenous communities affected through the Ministry of Energy and Mining. The Committee notes that, according to the Government’s indications, following a reform of the Mining Act, since 2015 the percentage of royalties paid to the communities has risen by 100 per cent.

The Committee notes that the Indigenous and Rural Workers Trade Union Movement of Guatemala (MSICG) indicates that the State has not taken any appropriate measures to bring national legislation into conformity with the Convention and has continued to grant natural resource exploration and exploitation licences, especially in the mining sector, without prior consultation with the indigenous peoples. The MSICG provides a list of 48 decisions issued by the General Mining Directorate which grants exploration licences; and a list of 42 decisions issued by the Ministry of Energy and Mining which grants exploitation licences, between 1997 and 2015, with respect to which the MSICG considers that the right of consultation with indigenous peoples has not been respected. The MSICG considers that the Government should refrain from granting licences as long as the legislation has not been amended and consultations are not held as part of the rules and procedures established together with the indigenous peoples.

The Committee notes the Government’s detailed information on the activities carried out to comply with the decisions of the Constitutional Court relating to the Vega I and Vega II hydroelectric power plants, in the Santa María Nebaj municipality in the department of Quiché. In its decisions, it ordered the Ministry of Energy and Mining to initiate a consultation process with the indigenous Maya Ixiles peoples, regarding the construction of the plants. The Government indicates that the Deputy Minister for Sustainable Development has taken steps to set up a consultation, including training and information workshops with the communities. The Committee also notes the actions carried out by the Ministry of Labour and Social Security to comply with the decision of the Constitutional Court relating to the “Uspatán and Chixoy II underground project and the Uspatán-Chixoy II transmission line”, in which the Government is requested to conduct prior consultations with the affected communities of San Juan Cotzal of the Quiché department. In this respect, the Government indicates that: (1) preparatory meetings were held with the municipal and indigenous authorities aimed at ensuring a climate of trust and respect throughout the process; and (2) the consultations were a means of reaching agreement or consent among the State, enterprises and the indigenous Maya Ixiles peoples on the legislative or administrative measures that might directly affect them

The Committee recalls in this respect that appropriate regulations on consultation aimed at determining the degree to which the indigenous peoples’ interests would be affected by programmes for the exploration or exploitation of resources pertaining to their lands, in conformity with Article 15 of the Convention, help to reduce social conflict surrounding those programmes and to lay the foundations for inclusive sustainable development processes. The Committee encourages the Government to, through a revision of the legal framework concerning programmes for the exploration or exploitation of natural resources, including the Mining Act, ensure compliance with Articles 6 and 15 of the Convention as regards prior consultation. The Committee requests the Government to provide information on any reforms it has adopted or plans to adopt in this regard.

Article 20. 1. Conditions of employment. In its previous comments, the Committee requested information on measures adopted by the General Labour Inspectorate to ensure that indigenous workers, including seasonal, casual and migrant workers in agriculture, are not subjected to exploitative or abusive conditions of work. The Government indicates that its plans for the agricultural sector include the inspection programme for the sugar cane planting, harvesting and transporting sector, or the inspection plan for the African palm production sector. The Government indicates that the General Labour Inspectorate is developing a strategic plan to broaden coverage through the number of inspectors and offices in the country.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that: (1) the situation of poverty among the indigenous population is closely linked to their deplorable conditions of work; (2) over half of the population occupied in the rural sector is indigenous, including agricultural workers on their own account and day labourers who are employed for other people; and (3) there is a high rate of labour rights violations in the country in general, but especially in the rural areas.

The Committee requests the Government to provide information on the measures taken to ensure that the labour inspectorate can effectively perform its activities in the agricultural sector, and in particular in the areas and jobs in which primarily indigenous people are occupied.

2. Training and admission to employment. The Committee notes the information provided by the Government on the mechanisms intended to promote the employability of vulnerable groups of the population, including grants and technical training programmes. Among the 2,834 beneficiaries of training programmes in 2017 were 1,671 Ladino, 1,063 Maya, 27 Garifuna and two Xinca people (71 are not specified). The Government also provides information on the courses for tourism training and on the members of indigenous peoples who received the services of the Technical Institute of Training and Productivity (INECAP). The Committee encourages the Government to continue to provide information on the measures taken to promote access to training and employment for the indigenous communities, and their impact.

Articles 24 and 25. Health. The Committee previously requested the Government to provide information on the health services in the regions. The Government refers to the adoption of the national policy on midwives belonging to the four peoples of Guatemala for 2015–25, emphasizing that the community work and services of the midwives, mainly concerning prevention, promotion and assistance regarding women’s and newborns’ health, contribute to an improvement in health conditions in the country. The Committee notes with interest that the development of the policy included the participation of midwives belonging to the Maya, Xinka, Garifuna and Mestizo communities in the dialogues that were part of this process, taking into account their socio-cultural and linguistic backgrounds. The Government also provides general information on the national hospitals, and the health centres and posts in the country. Regarding nutritional and food security, the Government indicates that in 2016 the national strategy to prevent chronic malnutrition was launched, as well as the response plan for seasonal hunger aimed at the Maya, Xinka and Ladino communities living in the municipalities of the departments along the Dry Corridor.

The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala refer to the National Survey on Maternal and Child Health 2014–2015 according to which 47 per cent of children under 5 suffer from chronic malnutrition. The survey shows that in the indigenous group, 58 per cent of children have chronic malnutrition and 23 have severe chronic malnutrition. In the non-indigenous group, however, the prevalence of chronic malnutrition is 34 per cent, and 10 per cent for severe chronic malnutrition.

The Committee encourages the Government to continue to take necessary measures to make appropriate health services available to the indigenous peoples. The Committee also requests the Government to provide information on the measures taken within the framework of the national strategy to prevent chronic malnutrition, and their impact, in particular on indigenous children.

Article 27. Education. In reply to the Committee’s previous comments on activities carried out in the field of bilingual education, the Government refers to the strengthening of teacher training, among other measures. It indicates that initial teacher training consists of a general component where teachers receive the same training and a specialization stage with a specific focus on intercultural and bilingual issues, and physical education training. In this context, the higher vocational teachers’ programme offers four specializations: bilingual intercultural teaching, intercultural teaching, development and productivity teaching, and physical education teaching. In 2017, the pre-primary and primary intercultural education degree programme was launched, with a focus on intercultural bilingual education in 126 venues. A total of 7,791 students registered at both levels (1,596 for pre-primary and 6,195 for primary). The Government also refers to the role of the Guatemalan Academy of Mayan Languages, which is formulating a teacher training programme for the development of linguistic and methodological skills for teaching the Mayan language. In this respect, teachers who provide bilingual classroom teaching, thereby reinforcing pupils’ sense of cultural and linguistic belonging, receive a bilingualism bonus. The Committee notes this information and the data provided in this area and on participation rates in literacy programmes, disaggregated by department, ethnicity and gender. The Committee encourages the Government to continue making efforts to implement the bilingual education policy and requests it to continue to provide statistical information in this regard as well as on the attendance rates of indigenous peoples in pre-primary, primary and secondary establishments, and universities, compared with the rest of the population.

Article 30. Use of mass communications. The Committee notes that the Autonomous Popular Trade Union Movement and Global Unions of Guatemala indicate that, in recent years, many acts of repression have been committed against indigenous peoples’ media, especially against community radio stations, on grounds of a lack of legislation to regulate and protect community communications. The Committee recalls the importance of the use of mass communications in the languages of indigenous peoples in order to inform them of their rights and obligations and requests the Government to provide information regarding the observations of the Autonomous Popular Trade Union Movement and Global Unions of Guatemala.