Guatemala -- ILO Art. 24 Report on Guatemalan Nickle Corp. license/indigenous Maya Q'eqchi people in the El Estor municipality (4 June 2007)
|REPRESENTATION (article 24) - 2005 - GUATEMALA - C169 ---- 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)
Description:(Article 24 Representation)
COMPLAINANT Federation of Country and City Workers (FTCC)
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.
Conclusions C. The Committee's conclusions
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.
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.)
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.
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.
Recommendations The Committee's recommendations
(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.
Points for decision: Paragraph 60;Paragraph 61.
Endnotes 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.
Cross references Constitution: Article 24 Article 24 of the Constitution Conventions: C169 Indigenous and Tribal Peoples Convention, 1989