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Guatemala’s Maya Q’eqchi’ community pin hopes on human rights court after a 40-year battle to protect their land
Rights and Resources Initiative

Ruling could extend to communities across Latin America, as governments rush to approve new mining projects to meet global demand for green minerals.

10 .02. 2022  
5 minutes read
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With funding and support from RRI’s Strategic Response Mechanism, the Indian Law Resource Center brings to the Inter-American Court of Human Rights (IACHR) the case of the Maya Q’eqchi’ Agua Caliente Indigenous Community v. Guatemala, a community that has been struggling to secure legal ownership of their lands for more than 40 years.

SAN JOSÉ, COSTA RICA – (9 February 2022) The Inter-American Court of Human Rights today heard oral arguments in a case against Guatemala that could set a precedent for Indigenous communities across Latin America, strengthening their quest for collective rights to their ancestral lands and the right to control their natural resources. These rights are increasingly under threat as demand grows for minerals to feed a burgeoning global market for electric cars and renewable energy.

The Maya Q’eqchi’ community of Agua Caliente, the plaintiff in the case against the Government of Guatemala, is one of 16 communities engaged in a 40-year battle to banish from their territories a dirty and conflict-riven open-pit nickel mine in El Estor, Guatemala, operated by a subsidiary of the Swiss-based Solway Investment group.

“This case brings to the Court, for the first time, a chance to rule on whether governments should act to recognize the rights of Indigenous Peoples to permanent sovereignty over their natural resources, as a principle of public international law,” said Leonardo Crippa, an attorney with the Indian Law Resource Center and a member of the plaintiff’s legal team.

“The evidence supports such a ruling, and so does the historic context. We now have a powerful new ally, an influential global public that is demanding an end to investments – by companies, multilateral banks, governments and other investors – that harm the planet and violate human rights.”

 

A positive ruling would be a victory for all of the Maya Q’eqchi’ communities in El Estor, including those that were in the news in October, when soldiers arrested dozens of community members and the government declared a state of emergency to end a blockade protesting the environmental impacts of the Fenix mine on water, air and soil in 16 affected communities.

“We have always pursued a legal solution,” said Goldman Prize winner Rodrigo Tot, a leader of Agua Caliente, which eschewed the October protests. “The protests have not had any real impact, although we understand them. The law takes a lot of patience and time, but we have faith that it is the answer. And the human rights court’s decision will cover all 16 Maya Q’eqchi’ communities affected by the mine.”

Often the forum of last resort for Latin America’s Indigenous and other marginalized communities, a decision for the plaintiffs could have a crippling effect on the country’s access to financing for development projects, said Crippa, who delivered oral arguments before the court today.

Multilateral banks would respect the court’s decision and a ruling would guide where banks invest and what terms they set. The global economic sector does not like uncertainty and unnecessary risk,” Crippa said.

“By supporting the demands of the Maya Q’eqchi’ peoples of El Estor, the court ruling could help quiet fears of rising climate change and reputational risk associated with meeting growing demand for minerals, particularly ‘green minerals’ like nickel.”

 

 

In a brief submitted today to the court, the plaintiffs argue that the U.N. and O.A.S. Declarations on the Rights of Indigenous Peoples, and the socio-environmental safeguard policies of multilateral development banks, establish an obligation for governments to obtain the consent of Indigenous communities before a project is introduced onto their lands.

“The Court should establish this obligation as a guarantee of protection of the property rights of Indigenous peoples over their lands, territories and natural resources,” the plaintiffs argue, suggesting that by doing so, the court would influence the behavior of extractive companies wanting to do business in the region.

The brief argues the government has engaged in a pattern of deception that included the refusal to replace missing pages in a registry that documented Agua Caliente’s long-time struggle for title.

 

Drawing on a ruling by Guatemala’s Constitutional Court, the community’s legal team shows that the government forced the community to identify its members as “landless peasants” to obtain title to their lands. The government then used the process to expand the land covered by the Fenix mining project, which Solway purchased from a Canadian company in 2011, according to the brief. When the government failed to comply with the domestic court’s order that it issue Agua Caliente collective title to their lands, the community began the legal process that led to today’s hearing.

“The government has now expanded the mine onto the territories of Agua Caliente, allowing the exploration of subsoil resources on territories under traditional possession,” Crippa said. “Their next step has been to open the lands to exploitation, with the goal of increasing the area of Solway’s mining project.”

Rather than obey the Constitutional Court’s ruling, the government suggested the 16 communities of El Estor leave contested lands that overlap with the mine. For now, the mine has stopped its operations on the territories covered by the ruling, but its processing plant on the shore of Lake Izabal continues around the clock to pump dust into the air. And the protesters say the communities are suffering from toxins leaked into Lake Izabal, Guatemala’s largest expanse of water.

The plaintiffs are asking the court to direct the Guatemalan government to order studies of the impact of proposed mining projects on human rights – before granting approval; to pay the costs and expenses for the government’s 40-year delay in issuing collective title for Agua Caliente’s lands; and to provide compensation for “the non-pecuniary damage” it has caused the community.

Rodrigo Tot’s sons, Edin Leonel Tot Sub and Wilfrido Rodrigo Tot Sub, were shot in a violent attack in 2012. Edin Tot died; Wilfredo Tot survived but has needed extensive medical care. The attack took place in front of Edin Leonel Tot’s nine-year-old son, who underwent a year of psychological care to deal with his trauma. And yet, the family and the Agua Caliente community have continued to resist the presence of the nickel mine.

“The respect for nature is fundamental to the character of Agua Caliente and to many of the Indigenous peoples of Guatemala,” said Carlos Pop, a Guatemalan attorney and member of the legal team presenting today at the human rights court.

“They continue to advance against all the obstacles they have confronted, which are rooted in Guatemala’s colonial history of discrimination and violence toward its Indigenous peoples. To the extent that judicial decisions oblige the recognition of rights under national and international norms, this ruling can change a dynamic that has always favored the powerful. And that would be transformational.”

 

The Indian Law Resource Center provides legal assistance to Indigenous Peoples of the Americas to combat racism and oppression, to protect their lands and environment, to protect their cultures and ways of life, to achieve sustainable economic development and genuine self-government, and to realize their other human rights.

Watch the hearing recording on YouTube (in Spanish) or read the IACHR press release.

For questions, please contact Omaira Bolaños.

 

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