Saint Joseph. The Inter-American Court of Human Rights (CorteIDH) has the State of Guatemala sentencedbecause he controls the operation of the Nickelmine Fénix on land belonging to the indigenous community of Agua Caliente Lote 9 in El Estor. The court ordered the state to return it and consult the Q’eqchi’ Mayan communities about the mining project.
The state “is responsible for the lack of recognition of collective ownership, for the lack of adequate consultation on mining activity and for acts of violence and harassment of an indigenous community,” it headlines communique for judgment.
Since 2011, the owner of the largest nickel mine in Central America has been the Swiss mining company Solway Group, which spun it off as a subsidiary under the name Compañía Guatemalteca de Níquel SA (CGN). The operation and the associated environmental damage have led to conflicts with local residents for years, most of whom live as small farmers or from fishing.
The situation most recently escalated in October 2021, when there was massive state violence against a protest camp. Residents from 94 municipalities and the Lake Izabal Fishermen’s Association had blocked an access road to the Fénix mine. The background was that the mine continued to operate despite a ruling by the Constitutional Court, according to which the company had to stop operations until the local residents were questioned. In addition, the resistant communities were excluded from the preliminary interviews for the survey. President Alejandro Giammattei declared a state of emergency in the district ( Amerika21 reported).
With its complaint to the CorteIDH, the municipality of Agua Caliente Lote 9 also demanded redress for the violation of its rights by the State “in view of the agricultural policies and the projects of the mining industry in its territories” as well as for the lack of legislative and administrative measures to guarantee its territorial rights and self-government .
Your lawyer Leonardo Crippa from the Indian Law Resource Center explained: “The court has ruled for the first time that the government must change legislation to recognize the collective land ownership rights of indigenous peoples and remove all discriminatory laws and recognize these communities as distinct legal, social and political entities.” After 40 years of struggle, the community has prevailed, potentially setting a precedent for indigenous communities across Latin America, one said Press release of the Center.
Members of the Maya Q’eqchi’ Ancestral Council and the Fishermen’s Association welcomed the judgment recognizing their ancestral lands. The right to consultation, confirmed by the Court, is also fundamental, since it is the communities that have to decide on their territories and all the circumstances affecting their daily life.
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Guatemala’s Constitutional Court ordered in 2019 that the Fénix mine must stop mining until the indigenous population of El Estor was consulted. The CorteIDH presented now finds that the consultation measures following the judgment were not carried out adequately in the municipality of Agua Caliente and that its customs and forms of organization were not respected. For example, the environmental impact assessment was only published in newspapers whose circulation did not reach the area of the Q’eqchi communities of El Estor. Furthermore, it was not available in the languages spoken by the affected communities. The state did not ensure prior and informed consultation.
The lack of recognition of collective ownership and the mining activity also affected the life of the community and was linked to various acts of violence and harassment: “Guatemala is responsible for violating the right to moral integrity of the members of the community.”
The CorteIDH referred to Article 21 of the American Convention on Human Rights on ownership: “Among indigenous peoples there is a communal tradition of collective land ownership, which assumes that ownership of land is directed not at an individual, but at the group and its community.” These ideas do not correspond to the classical conception of property, but the Court has found that they are protected by Article 21. The traditional ownership of their land has equivalent effects to the property rights granted by the state and gives them the right to demand official recognition of their ownership and the registration of their land. Communities that, through no fault of their own, abandoned or lost ownership of their traditional lands retained the right to ownership of that land, even in the absence of legal title, the court said.
According to international law, indigenous peoples and communities should be viewed as collective subjects who, as such, exercise certain rights, such as land ownership, “from a collective dimension”.
The state of Guatemala must now hand over the title deeds for the land to the indigenous community of Agua Caliente Lote 9 within six months. In addition, the survey of the Q’eqchi communities in El Estor, Izabal, Cahabón, Panzos and Senahú in Alta Verapaz must be repeated in connection with the Fénix mining project.
The Solway Group, which bills itself as “the world‘s largest privately held nickel producer” designated, shared that she was not involved in the events alleged in the lawsuit. The Court’s decision also does not affect the company’s right to mine in areas outside the municipality of Agua Caliente. Here it overlooks the court’s instruction to repeat the consultations with other Q’eqchi communities on the Fénix project.
“An operating mine will not only be a source of stability and economic growth for the region, but will also serve as an important source of nickel for the U.S. and European markets for battery materials, eliminating the need to source them from Chinese and Russian mines ,” Solway concludes.