Nicholas Copeland

Presentation of the CECON study in communities affected by the Escobal Mine (Photo by Nicholas Copeland)

The Escobal Mine, located near the border of the eastern departments of Jalapa and Santa Rosa in the rural Guatemalan town of San Rafael Las Flores, is one of the largest silver mines in the world, and one of the most intense among hundreds of sites of environmental conflict in Guatemala. The state granted Escobal its mineral extraction license in 2013, disregarding numerous complaints about its environmental and health impacts, just two weeks after two Xinka leaders had been abducted returning from a community consultation vote.

The mine has been the target of fierce regional resistance since 2010, supported by La Comisión Diocesana de Defensa de la Naturaleza (the Diocesan Commission for the Defense of Nature, CODIDENA), who have along with the Xinka Parliament organized 12 community consultations in which tens of thousands of residents voiced overwhelming opposition to the project. In 2013, private security forces opened fire on peaceful protestors outside the mine site, wounding dozens, the subject of an ongoing lawsuit in British Colombia, and the government declared a state of siege in which five people were arrested and detained for months.The mine went into operation in early 2014.

Guatemala is a signatory to International Labor Organization (ILO) treaty 169, which recognizes communities’ right to determine the conditions of their own development and to be consulted, through their own institutions, regarding policies that affect them, to protect the environment in the territories they inhabit. Authorities bypassed this process because they did not recognize the community as an Indigenous group—despite 16,000 self-identified Xinka recorded in the 2002 census. In response, the Xinka Parliament sued, and in July 2017, while the community resistance maintained a blockade of materials to the mine, the Guatemalan Supreme Court (CSJ) ruled that the Xinka people’s right to consultation was violated. After an appeal by the Ministry of Mines (MEM) failed to pass the Constitutional Court, the mine was suspended in 2017 pending their ruling.

The resistance won a partial victory in September 2018 when the Constitutional Court (CC) found that the Xinka people had been discriminated against and their right to consultation violated. However, instead of definitively cancelling the mine project, the court ordered the mine to remain suspended until a consultation was carried out, through a regulated (court-described) process, and then resume, regardless of whether or not the community consents. (This was distinct from their ruling on the Oxec dam on the Cahabón River in Alta Verapaz, as that hydroelectric project was allowed to continue prior to consultation.) In the meantime, Pan American Silver has purchased the Escobal Mine, formerly owned by Tahoe Resources, and the community blockade continues.

As the first case in which the CC has called for the creation of a consultation protocol, the fight over the Escobal mine has implications for Indigenous rights and territorial struggles across the country and region. Communities are rejecting these state-regulated consultation processes, which they see as providing a rubber stamp for industry and an attempt to invalidate their community level consultations. State-regulated consultation, rather than autonomous consultation, will inevitably aggravate existing conflicts and create new ones as extractive operations expand.

This ruling opens many questions about the role and limitations of consultation. What does consultation actually mean? Who is eligible to participate? Why have previous community consultations not been recognized? What is the point of consultations if operations are assumed to continue after, no matter the result?

Consultation and Contestation

To understand the threat of regulated consultation, we must dig deeper into the history of consultations. The community movement for consultation began in Guatemala in 2005 in opposition to the Marlin Gold Mine in San Marcos. Since then, communities have carried out dozens of consultations against mining and hydroelectric dams, a rearticulation of grassroots politics in defense of territory after decades of armed conflict and hollow recognitions of Indigenous rights. Communities see autonomous consultations as binding expressions of collective democratic will and the sovereignty of traditional authorities. Peaceful but militant community resistance has blocked dozens of large-scale, resource-intensive development projects by presenting facts on the ground, using a mix of protest, direct action, and legal strategies, that make it harder, more expensive, and sometimes impossible, for companies to implement any kind of extractive enterprise. The cessation of mining activities in San Rafael and even the state’s periodic declarations of unofficial nonbinding “moratoria” on granting mining licenses would be unthinkable if not for this passionate and coordinated resistance.

Mining companies employ a number of tactics to divide opposition to projects and undermine community-led consultations, alongside turning to repression. They have also fought, with help from the state, to limit and regulate the meaning and process of consultation, arguing that it threatens foreign investment and local and national development. For example, in 2017, the administration under Guatemalan president Jimmy Morales issued an Operative Guide for implementing consultations that provided the government exclusive power to determine the scope of the consultation and the relevant actors, with the stated objective of “coming to an agreement or gaining consent about the proposed measures.” The Constitutional Court has also followed a limited interpretation of consultation as non-binding, an interpretation consistent with the ILO’s 2003 view. More recently, the Constitutional Court has made regulated consultation a precondition for the operation of extractive projects.

The Constitutional Court has set up a four stage process for the consultation process for the Escobal Mine: defining the area of influence in consultation with the Ministry of Energy and Mining (MEM), the Ministry of Natural Resources (MARN), and public and private universities; determining a period of pre-consultation to determine the methodology for the consultation; the consultation itself; and presenting results to the CSJ for verification and approval.

However, this court-ordered process resembles previous attempts to impose “regulated,” or limited consultations. The Xinka Parliament has filed complaints about procedural violations that include the determination of a limited area of influence without CSJ approval, the tight relationship between the state institutions involved and the mining company, the disregard for the Parliament’s authority, and the mine’s continued efforts at community engagement. The mining company wants the “area of influence” to be as small as possible to limit the number of Xinka who must be consulted. Community members, who insist that true consultation must include everyone affected and include the power to close the mine, have protested to pressure the CSJ to comply with the CC resolution.

In addition to the threat of a regulated process, corruption and impunity constitute a second looming threat to the right of consultation. Guatemala is in the throes of a backlash against the central gains of the human rights movement and against anti-corruption politics, both of which have negative implications for Indigenous rights and territorial politics. Guatemala is in a human rights crisis, with over 20 community leaders attacked last summer, causing experts to warn of “a new stage of repression.” That congress is debating passing a law that would free recently convicted intellectual authors of mass murder, torture, and rape sends a signal to anyone considering violence against grassroots activists, the primary targets.

Meanwhile, on January 15, 2019, the Morales government withdrew from a consultation process with Ixil Ancestral Authorities in Cotzal over a hydroelectric dam, in flagrant defiance of the CC’s 2015 ruling. Similarly, Brazilian’s authoritarian President, Jair Bolsonaro, has invoked national security as a justification for ending consultations with Amazonian Indigenous communities. Will the Indigenous right to consultation survive this rightward shift in continental politics, and in what form? Could the threat of losing the right to consultation force communities to accept a predetermined process?

Strengthening Autonomous Consultation Rights

Faced with multiplying forms of environmental harm and official attacks on legal protections, communities are seeking creative ways to uphold community resistance as expressed through their original autonomous consultations. One such strategy is independent and public sector research, particularly environmental analysis. The community resistance won an important symbolic victory when the Center for Conservation Studies, (CECON), part of the University of San Carlos, published a multidisciplinary study of the mine’s economic, environmental, and social impacts. This detailed case study, funded by Oxfam Guatemala, contradicted the mine’s claims that it would promote sustainable development. It showed that mining remains a small part of the national economy, and despite millions of dollars in royalties and social programs to San Rafael Las Flores and the creation of about 1,000 jobs at peak operation, levels of poverty have remained largely unchanged.

The study also underscored the psychological effects of criminalization of resistance. Those involved in the protests have been demonized by Guatemalan elites, mining companies, and the media, who use language recycled from the country’s civil conflict to refer to the protesters.

The study also focuses on La Cuchilla, a village located just above an entrance to the mine’s tunnel complex, whose residents have been forcibly displaced. It questions the logic and ethics of opening a massive mine at the top of a basin and river system that provides water for several municipalities in a region with high levels of arsenic. It finds that the mine pumps 255 gallons of water per minute out of its massive underground tunnels, millions of cubic meters per year. In the process, it exposes that water to contaminants and reintroduces it into the regional system, while also lowering the water table. Indeed, the Escobal Mine derives its name from a micro basin that it is rapidly destroying. The study concludes that the mine creates and exacerbates various forms of inequality. It also demonstrates the systematic deficiencies of the company’s environmental impact assessment and the analysis provided by the government agencies in charge of them.

Analysis of water samples at Virginia Tech labs found several locations near or above the maximum recommended levels for health. Hair, fingernail, and urine samples analyzed by USAC labs revealed elevated arsenic levels within a safe, but still concerning, range. The analysis could not determine if heavy metal contamination was a product of the mine due to the lack of independent baseline analysis, but underscored community members’ concerns about water safety, and demonstrated that a water treatment plant in San Rafael bought with royalties from the mine was not working properly.

The fact that CECON’s offices were broken into and robbed of machinery and files in the month prior to the study’s release signify the extent to which independent investigation threatens extractive industries.

The Future of Mine Resistance

States, corporations, and community resistance movements are all attempting to shape the consultation process, not only in the courts, but also in terms of the balance of force between state, corporate, and local actors. The playing field is very unequal, and each side has very different tools at their disposal. States and corporations have money and capacity for violence, compliant state agencies, and a mass media that largely shares their perspectives. Against these odds, resistance movements garner public support inside affected communities, as well as nationally, and across borders, often through alliances with NGOs. The authority of state institutions and scientific evidence can help movements build legitimacy. The CECON study, for example, demonstrates that most extractive projects, especially how they are enacted in countries like Guatemala, not only fall short on their stated economic promises, but wreak environmental havoc on communities that will persist for generations. There is a serious risk, however, with the Escobal case and others, that adding additional scientific data to limited or state regulated, predetermined consultations might legitimate these flawed processes, undermining the right as communities have been exercising it autonomously.

Another potential boon for grassroots movements against extractivism is growing social concern over multiple intersecting processes of ecological collapse, detailed in the International Panel on Climate Change report and reports of ocean acidification, deforestation, pollution, and water shortages. These fears raising the prospect of environmental racism, including mass extinction and ecological apartheid, an emerging global trend through which whiter, wealthier countries and groups shield themselves from environmental harms and shift the burden to poor and racialized populations, especially in the Global South. These are the impetuses behind growing national and international coalitions for a radical transformation in development models. Proposals for an Integrated Rural Development Policy, whose call for far reaching land reform and massive investment in sustainable, agroecological production, would do far more to address poverty than extractive industries and provide lasting ecological benefits.

In the meantime, legal activists must continue to insist that the language of the ILO 169 and other Indigenous rights protections, despite their limitations, nevertheless more closely resemble binding, autonomous community-led consultations than state and industry attempts to force communities to accept harmful projects through regulated consultations. The turn of community resistance to science is not a call for a broader range of data about ecological impact from non-industry sources to have bearing on a regulated consultation process, but rather a call to respect community led consultations and the right to self determination.

Legal strategies can, and have, gone further, like the Western Peoples’ Council (CPO) attempt to apply the right to consultation to national development models, rather than only specific projects. These strategies could be extended to focus on other forms of extractivism, like agrarian monocultures, providing another mechanism to address land inequality and historic dispossession. They could also center the right to self-determination itself, of which consultation is only one element. We should redouble our commitment to Indigenous self-determination while also extending these rights to non-Indigenous communities with close ties to the environment who are at risk due to extractive development. Strengthening Indigenous self-determination is vital to building alternatives to extractive, growth-oriented development models that threaten ecocide and civilizational collapse. Constructing a more robust conception of consultation as one mechanism of self-determination could play an important role in building a greener and more just and peaceful future.

*Author’s note: I collaborated on this project by bringing Dr. Leigh Anne Krometis, Associate Professor of Biological Systems Engineering at Virginia Tech, and her graduate student, Cristina Marcillo to conduct a monitoring of the superficial water systems around the mine site, data which appeared in the report. I also joined CECON to tour 12 natural spring sites above the mine that had dried up in the last five years.

Nicholas Copeland is Assistant Professor of American Indian Studies at Virginia Tech and the author of The Democracy Development Machine: Neoliberalism, Radical Pessimism, and Authoritarian Populism in Mayan Guatemala (Cornell University Press, 2019).