Origin
Convention 169 of the International Labor Organization (ILO) on Indigenous and Tribal Peoples was ratified by Guatemala through Decree 9-96 of the Congress of the Republic published on March 28, 1996, which entered into force on June 5 of the same year.
The predecessor of this Convention was Convention 107 on Indigenous and Tribal Populations in Independent Countries, which was revised between 1987 and 1989 with the participation of indigenous and tribal peoples and resulted in the drafting of Convention 169, which has two basic postulates: “the right of indigenous peoples to maintain and strengthen their own cultures, ways of life and institutions, and their right to participate effectively in the decisions that affect them”[1]. These new principles were embodied in what is now ILO Convention 169, which has been ratified by more than 20 countries, including Guatemala.
The Convention establishes guidelines that States must implement to respect the traditional values of indigenous and tribal peoples and to consult with them on decisions affecting their economic or social development, as well as respect for the rights of indigenous and tribal peoples over the lands they traditionally occupy. The Constitutional Court, in the Advisory Opinion issued under file 199-95[2], analyzed the request of the President of the Republic for the consideration of the constitutionality of the norms contained in ILO Convention 169, prior to the ratification of said agreement by the State of Guatemala.
In said opinion, a list is made of how other countries have adopted norms for the incorporation of the rights established for indigenous and tribal peoples, both in Convention 107 and Convention 169, as well as the considerations on each of the parts of the Convention, indicating in general terms, that said norms do not violate the established in the Constitution, but rather complement it.
One of the most important aspects is what the Court mentioned in relation to “the promotional or programmatic aspect of some of its norms, whose concretion and development requires successive legislative, administrative and governmental provisions, which is in accordance with the provisions of Article 70 of the Constitution. Furthermore, the norms of the Convention consider a flexible application and in accordance with the fundamental rights defined by the national and international legal system and taking into account the conditions specific to each country.”[3] The Convention establishes principles for the State to apply in order to guarantee the rights of the individual.
The Convention establishes principles for the State to implement, without specifying the measure (legislative or administrative) to do so, but especially in accordance with the conditions of each country. This means that the way in which each country implements the protection of indigenous and tribal peoples is different in form, but not in substance. In addition, the various countries that have signed and ratified Convention 169 have implemented other measures, not only to comply with the provisions of this Convention, but have gone further to protect other rights not contemplated.
Article 38 of the United Nations Declaration on the Rights of Indigenous Peoples, approved by the United Nations General Assembly on September 13, 2007, establishes that: “States, in consultation and cooperation with indigenous peoples, shall take appropriate measures, including legislative measures, to achieve the ends of this Declaration.”
It also establishes that in the event that the State owns the minerals or subsoil resources, or has rights over other resources existing on the lands, “Governments shall establish or maintain procedures with a view to consulting the peoples concerned, in order to determine whether and to what extent their interests would be prejudiced, before undertaking or authorizing any program of prospecting or exploitation of the resources existing on their lands. The peoples concerned shall, wherever possible, participate in the benefits accruing from such activities, and shall receive fair compensation for any damage which they may suffer as a result of these activities.”[4]
Convention 169 in Guatemala
Since the ratification of the Convention until 2016, the lack of application of the Convention did not have any direct consequence on the development of national or foreign investments, i.e., no resolution of the Courts in Guatemala suspended the construction or operation of projects. It was until March 2016, in which the Supreme Court of Justice granted a provisional injunction suspending the construction and operation of a hydroelectric project until consultation with indigenous peoples was carried out in accordance with the provisions of ILO Convention 169.
This case was the first in which a person, representing an indigenous population, requested and was granted the suspension of the works and operation of a project, due to the fact that the State did not carry out the prior consultation established in ILO Convention 169, when licenses or permits were granted that implied the authorization for the use of natural resources within a territory where indigenous populations were located, without previously considering whether and to what extent the interests of these peoples could be affected.
Since that decision, several constitutional protection cases, both for hydroelectric power plant development projects and mining extraction projects, were filed before the Supreme Court of Justice, and later, upon appeal of the decision, were heard by the Constitutional Court, which has the “last word” in matters of constitutional defense.
The criterion taken by the Supreme Court of Justice and subsequently ratified by the Constitutional Court to issue the resolutions (with or without the existence of a provisional injunction suspending the respective activities), was based on the type of natural resources of the projects, which, according to the Court, could cause irreversible damage to them, to the indigenous population or to the territories.
Current Status
As a consequence of the first judgment that suspended a project based on the lack of Consultation under ILO Convention 169 at the end of 2016 and which implied the suspension of projects, both mining and hydroelectric, the Ministry of Labor issued an Operational Guide for the implementation of the Consultation of Indigenous Peoples (“Operational Guide”), which established the principles under which it should be carried out, the conceptual guidelines, the roles of each of the institutions involved, as well as the consultative process with its different stages.
This has been the mechanism under which the Vice-Ministry of Development of the Ministry of Energy and Mines has normatively developed the current processes of Consultation, for those cases in which both the Supreme Court of Justice and the Constitutional Court have ordered it to be carried out. The realization of the consultations, based on what is established in the sentences and in the Operational Guide, is a good precedent for Guatemala that can be very useful for future projects to be developed and that I consider could give certainty to the processes that can be carried out.
For investors, the fact that the State of Guatemala carries out the consultation through its agencies under the principles of ILO Convention 169 established in the Operational Guide, fulfills the objective of establishing communication with the communities that may be considered affected by the use of the resources, having as a precedent the consultations carried out in accordance with the judgments. This is an important basis for attracting investment with the certainty that the project can be developed, without this being interpreted as a guarantee that the project will not have social opposition, which sometimes lacks legitimacy.
It is a great challenge for the State to maintain the institutionality and compliance with the protection of the rights of indigenous and tribal peoples, as prescribed in Articles 66 and 67 of the Political Constitution of the Republic of Guatemala, which refer not only to the issues addressed above, but also to the basic needs they have and that have not been addressed with cultural relevance, such as nutrition, health, education, in a fair balance with the right of all Guatemalans to obtain infrastructure for development, roads, energy, telecommunications, ports and airports.
[1] Presentation of ILO Convention 169; Elizabeth Tinoco, Deputy Regional Director, Regional Director for Latin America and the Caribbean.
[2] Case 199-95 of the Constitutional Court, issued on May 18, 1995.
[3] Constitutional Court file 199-95, issued on May 18, 1995.
[4] Article 15.2, ILO Convention 169.