G. SGUEO, Participation of Indigenous People: The Guatemala Marlin Gold Mine, in “Global Administrative Law. Casebook”, 2012, ed. by S. CASSESE, B. CAROTTI, L. CASINI, M. MACCHIA, E. MACDONALD
The Presidential Republic of Guatemala is a country of the Latin America where social injustices toward aboriginal community are diffuse. Indigenous people, more than 50% of the total population, are excluded from political life. The economic and social power is detained by local elites. This situation persist although the existence of sections II and III of the Constitution (that protect the local cultural patrimony and ethnic minorities) and the Treaty above the identity and rights of indigenous people that the government of Guatemala has signed in 1995 in Mexico with the Unidad Revolucionaria Nacional Guatemalteca.
In 1996 the government of Guatemala, following neo-liberal politics finalized to attract capitals from abroad, entrusts to Montana exploradora S.A. the task to carry out mining explorations in the San Marcos county. It must be remembered, to such purpose, that the mining exploration is considered an activity of public interest by article n. 125 of the Constitution of Guatemala. The feasibility studies are concluded in june 2003. They point out the possibility to widen and exploit some gold and silver strip mines located near the villages of Sipacapa and San Miguel Ixtahuacan.
On the 27 of november 2003 the government issues the digging concession. Glamis Ltd. (whom Montana exploradora S.A is a local branch) asks a financing to International Finance Corporation (IFC). In fact, the involvement of IFC in the project is considered necessary to avoid political risks deriving from digging activities in Guatemala, where such a big activity had never been realized before. IFC grants, in june 2004, a 45 million dollars financing.
On january 2005 Colectivo ecologista Madreselva (CEM), a ONG that fights for indigenous people rights, put forward an official complaint to Compliance Advisor Ombudsman (CAO). The ONG complaints the negative impact of the project on the environment and the adoption of inadequate consultation procedures toward the indigenous people. On the 12 of june 2006, after the adoption of a follow-up report from CAO, a coalition of NGOs (among wich are Bank Information Center, Halifax Initiative Coalition, Friends of the Earth and Oxfam America) put forward another complaint.
On march 2005 the CAO upheld the claim. On the 8 of september 2005 is prepared an assesment report containing some suggestions to stimulate the participation of all the involved parties. After this report the CAO prepares two follow-ups: the first one after a mission of the 8 of october 2005; the second one after a mission that takes place from the 23 of january to 2 of febraury 2006.
In the meantime the government of Guatemala, following the pressures endured, on the 18 of june 2005 organizes a public consultation in order to ask the opinion of population from Sipakapa about the mining activities. Among thirteen fractions, organized as thirteen electoral colleges, eleven votes no, one abstain from voting and only one is in favour of the minings. Montana exploradora put forward a claim in front of the Constitutional Court in order to invalidate the voting. The Constitutional courts, after long esitations, decides on the 6 of april 2006 and convalidates the result of the public consultation.