On Feb. 18 Mayan Mam municipality of San Juan Ostuncalco, in the highland department of Quetzaltenango, voted overwhelmingly against seven mining exploration licenses granted by the Ministry of Energy and Mining to Canadian mining company Gold Corp, which started producing gold in December 2005.

Of 6,758 people, including children, who took part, all but 30 rejected the mining projects authorized by Álvaro Colom´s government.

The San Juan Ostuncalco plebiscite was held in solidarity with two other Mam communities in Quetzaltenango — Cabricán and Huitán — which rejected mining licenses in two other referenda held in November last year.

It was the 48th plebiscite that has been held in Guatemala since the country ratified International Labor Organization´s Convention 169 on the Rights of Indigenous and Tribal People, in 1996.

In the February vote, the plebiscite was organized by the municipal authorities using ballot papers, on which the question “do you agree with mining projects in San Juan Ostuncalco?” was printed in the Mayan Mam language and voters had to mark the “yes” or “no” box with an X.

Other communities prefer to use more traditional forms of voting such as a show of hands, due to high illiteracy rates in many rural areas.

Mash Mash, one of the leaders of the Mayan Mam Council, explains that the people of San Juan Ostuncalco, Cabricán and Huitán fear that mining projects might jeopardize the communities´ water sources, as well as local forests and wildlife.

The pollution of local rivers with cyanide, explosions that have left huge cracks in villagers´ dwellings and the systematic repression of local activists opposed to mining projects have become a regular feature of daily life in the communities of Sipakapa and San Miguel Ixtahuacán, in the northern department of San Marcos, where Montana Exploradora de Guatemala, a subsidiary of Gold Corp, runs the controversial Marlin mine.

Fearing that mining projects will bring similar disasters to their communities, indigenous people have repeatedly expressed opposition to projects that are clearly environmentally hazardous and show scant regard for the welfare of the local population.

However, none of the plebiscites held to date in accordance with Convention 169 have been legally binding. The government has argued that for the convention to take effect, a legal instrument known as a “reglamento” that weaves it into the Constitution must be approved first.

A legal maneuver to curtail indigenous rights

The government´s refusal to comply with ILO Convention 169 has been the focal point of indigenous protests against the Colom administration and has led to a number of rebukes from the Inter-American Commission on Human Rights.

In response, the government put forward a “reglamento” that would allow ILO Convention 169 to come into effect past February.

But so far indigenous organizations have voiced serious objections, mainly that they were not even consulted on the initiative. The government drafted the document without taking indigenous leaders into account and then posted the document — in Spanish — on the Labor Ministry´s website with a 30-day window for citizens to read it and state any disagreements.

As Mayan anthropologist Irmalicia Velásquez Nimatuj points out, it is unrealistic and culturally inappropriate to expect remote Mayan villages — many of which do not speak Spanish and do not have Internet access — to download the lengthy document and present their objections in writing with such short notice.

“The regulation was never discussed with indigenous people or with the poor ladino [mestizo] population living in the areas where mining and hydroelectric companies operate,” said the Guatemalan Campesino Unity Committee in a statement on Feb. 23. “For this reason we ignore and reject the government´s initiative.”

Secondly, the content of the document itself has been controversial.

Lawyer Carlos Loarca, of the nongovernmental Guatemalan Office for Strategic Litigation on Human Rights, who has waged a long legal battle in the Guatemalan courts on behalf of the people of Sipakapa and San Miguel Ixtahuacán, explains that ILO Convention 169 is an international treaty, which means that it should have come into effect automatically when Guatemala signed it in 1996 with no need for a “reglamento,” as this only applies for laws approved by Guatemala´s Congress.

“If a ´reglamento´ was necessary for a treaty to come into effect, why was this not required in the case of other international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide?” he asked.

Loarca adds that different government institutions have issued contradictory and confusing statements about the application of ILO Convention 169.

In fact, a letter sent by the Presidential Commission on Human Rights to the IACHR in response to the latter´s concern with regards to the violation of indigenous rights in Sipakapa and San Miguel Ixtahuacán, in November last year, states: “ILO Convention 169 became a national law since it was ratified”.

If that is the case, argues Loarca, why has the Ministry of Energy and Mines repeatedly refused to acknowledge indigenous plebiscites as legally binding arguing that a “reglamento” needs to be approved?

The Constitutional Court has also issued contradictory rulings. In July 2009, it ruled that environmental impact studies carried out by the Ministry for the Environment and Natural Resources must include the consultation of indigenous communities in compliance with ILO Convention 169.

However, in a later ruling in December 2009, with regards to a plebiscite carried out by the municipality of San Juan Sacatepéquez in which the Mayan Kaqchikel population voted overwhelmingly against the construction of a cement production plant in the area, the court ruled that consultations can play “an accessory role” when environmental impact studies are drawn up.

When questioned on the controversial issue, President Álvaro Colom recently stated that “random plebiscites cannot be held without a proper order,” meaning that ILO Convention 169 would be applied on the government´s terms, not those of indigenous communities.

For indigenous leaders this is clearly unacceptable.

“The imposition of this ´reglamento´ not only violates the collective rights of indigenous people, it also violates and misinterprets international conventions in favor of the government and corporations whose only aim is to exploit our natural resources,” said the Guatemalan Campesino Unity Committee.