Guatemala
In 2004, the Ministry of Energy and Mines of Guatemala granted a mining exploration license to the company EXMIBAL, which was later transferred to the Guatemalan Nickel Company SA
The mining license was granted in 2006 without adequate consultation with the community. This, along with the presentation of the Environmental Impact Study only in Spanish and not in the Q'eqchi' Mayan language, led to a series of legal and social conflicts.
Activists and residents of the Q'echi' Maya community of Agua Caliente promoted an injunction and legal claims in national and international courts against the Fenix Nickel mine (owned by the Guatemalan Nickel Company -CGN-, a subsidiary of the Swiss mining company Solway Investment Group), denouncing, among other issues, that operations at the mine continued despite a court order that suspended its license in July 2019.
Territorial rights, environmental degradation, and the right of Indigenous peoples to be consulted were among the arguments presented in court. The proceedings revealed that some Indigenous communities disputed the boundaries of the mining concession, claiming the territory as their ancestral right. These tensions led to instances of sexual violence, murder, and the criminalization of territorial rights defenders in El Estor, Guatemala.
On June 18, 2020, the Constitutional Court issued a ruling in which it concluded that the Ministry of Energy had not observed the prior consultation in accordance with the provisions of ILO Convention No. 169.
After exhausting all available legal avenues, on August 7, 2020, the community presented the case to the Inter-American Commission on Human Rights. The Court ruled in favor of the indigenous community, finding that the Guatemalan State had failed to conduct adequate prior consultation with the Q'eqchi' Maya community of Agua Caliente regarding a mining project that affected their territory.
According to the Commission, the case relates to Guatemala's alleged responsibility for violations of the rights of the Q'eqchi' Maya Indigenous Community of Agua Caliente Lot 9, due to the lack of domestic legislation to guarantee their right to collective ownership, the granting and establishment of a mining project on their territory, and the absence of adequate and effective remedies to seek protection of their rights. In Merits Report No. 11/20, the Commission determined that the State was responsible for violating the rights to recognition of legal personality, personal integrity, judicial guarantees, freedom of thought and expression, collective property, political rights, and judicial protection, established in Articles 3, 5.1, 8.1, 13, 21, 23, and 25.1 of the American Convention, in conjunction with the obligations established in Articles 1.1 and 2 of the same instrument.
In 2020, Guatemala's Constitutional Court ordered that prior consultation be observed and suspended mining operations.
Following this, in 2021, the State promoted “pre-consultation” and consultation processes among indigenous communities, through various media outlets, in Spanish and Q'eqchi'.
However, the Court concluded that the mining activity affected the local community and that the project started without proper consultation.
Implementation
On May 16, 2023, the Inter-American Court of Human Rights issued a judgment declaring the international responsibility of the State of Guatemala for the lack of proper titling, delimitation, and demarcation of the community territory of the Maya Q'eqchi' Indigenous Community of Agua Caliente Lot 9. It also determined that the State did not conduct a prior and adequate consultation with the Community regarding a mining project that affected its territory.
The Court's ruling is the first decision by an international legal body to recognize the rights of indigenous peoples to permanent sovereignty over natural resources. to the soil units of their traditional territories.
The case reaches the Court after a long journey of trials and social mobilizations against nickel mining, which was first authorized in Guatemala 40 years ago and has experienced an increase in demand for its use in making electric batteries for different devices and vehicles.
The Court's analysis and ruling focused on events that occurred in the territories of the Q'eqchi' Maya people in eastern Guatemala. Civil organizations supporting the plaintiffs point out that the IACHR, in its ruling, compels the government to revoke the mining and exploration permits.
The lawsuits highlighted that the extraction of minerals for batteries such as cobalt, lithium, and nickel causes excessive harm to indigenous peoples, which is especially relevant in contexts of energy transition where the demand for these minerals is increasing to store energy from renewable sources.
Metal mining is one of the world's dirtiest industries, responsible for at least 10% of anthropogenic greenhouse gas emissions. As with the Fénix mine in the municipality of El Estor, mining worldwide is linked to environmental destruction, pollution and depletion of freshwater, human rights abuses, forced displacement, loss of livelihoods, violent conflicts, unsafe working conditions, and illicit financial flows in many parts of the world. Increasingly, mining poses threats to ocean health through the risky practice of wastewater discharge.
Nickel is a key material in the production of batteries used to power electric and hybrid vehicles. The mine raises serious concerns about climate change and the environment, highlighting the need for stricter regulations and a greater commitment to sustainability in the mining industry.
Solway describes the Fénix mining project (CGN) as one of the top 10 locations where the richest and purest nickel in the world is extracted, and as a deposit with great potential.
For their part, the indigenous peoples of Guatemala are fighting to ensure that the energy transition is carried out respecting their lands, livelihoods and human rights.
- Indian Law Resource Center.
- The Q'eqchi' Maya Community of Agua Caliente.
- Mr. Rodrigo Tot.
- Rights Action, a human rights organization.
- Organization for legal defense, Q'eqchi Defense.
- Legal Resource Center for Indigenous Peoples
- Association of Maya Lawyers and Notaries of Guatemala. (Amicus curiae)
- Indian Law Resource Center.
The Agua Caliente Lote 9 Community, located in the municipality of El Estor, Department of Izabal, is home to approximately 400 people. These lands, encompassing more than 1,353 hectares, represent not only a place of residence but also a sacred space, deeply linked to the identity and spirituality of the Q'eqchi' Maya community.
Since ancient times, the Maya Q'eqchi' have viewed their lands not as exploitable resources, but as an integral part of their existence.
The community organization of Agua Caliente is robust, with leadership figures such as the Head Guide and the Community Mayor, in addition to a Pro-Improvement Committee founded in 1978 to defend its land and resources.
However, this spiritual and organizational connection with the land has been constantly challenged by external forces.
The community's main source of income is agriculture; corn and beans are its most representative products. Raising livestock and producing handicrafts and textiles also contribute to the community's economy. Regarding the internal organization of land tenure, the members of the Agua Caliente Lote 9 Community are located within the territory according to areas suitable for planting.
Fénix is Guatemala's only active open-pit nickel mine, producing 120,000 tons of nickel per month, making it the largest in Central America. It is located on the shores of Lake Izabal, Guatemala's largest lake, a crucial resource for fishing and freshwater for local communities, but one that has been polluted over the years.
- American Convention on Human Rights.
- ILO Convention 169.
International agreements/treaties
- Paris Agreement.
National laws
- Political Constitution of the Republic of Guatemala.
Beginning
- Prevention principle.
- Intergenerational principle (rights of future generations).
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