Community Referenda on Mining in Guatemala

Latin America has experienced a boom in mining development since the late 1990s and early 2000s. In Chile, the share of GDP attributed to mining tripled between 2003 and 2013, while in Colombia and Peru it doubled. Guatemala saw a 1000 percent increase in mining licenses granted between 1998 and 2008. This rapid growth throughout the region has brought with it a host of concerns, both environmental and social. New mining development is possible thanks to advanced technologies that make previously inaccessible deposits more efficient to mine. As a result, companies increasingly come into contact with communities in areas not historically open to mining. A disproportionate number of these communities are predominately peasant or indigenous, and often distant from the urban centers where decisions about mining development are made.

Local communities and anti-mining activists fear that their voices will be drowned out by industrial interests. Many communities, sometimes supported by non-governmental organizations, have organized referenda in order to record the opinions of people who would be impacted by proposed and current mining projects. The first such event was held in 2002, in Tambogrande, Peru, and resulted in the resounding rejection of the proposed project. Through subsequent protests and campaigns, the residents of Tambogrande succeeded in stopping the project from going forward. Similar votes were held shortly thereafter in other parts of Peru, as well as Argentina, and more recently in Ecuador and Colombia.

In Guatemala, which held its first referendum in 2005, more than 80 referenda have been held throughout the country, far surpassing the number held in any other country. Referenda have become a central part of both anti-mining movements as well as conversations about contemporary indigenous politics in the country. While most referenda continue to focus on mining, many have also addressed related natural resource issues and community autonomy more broadly. The impact of the referenda on continued mining development in Guatemala has been debated—although the government temporarily halted granting new mining licenses in 2010, they have yet to cancel or shut-down any proposed mining project. Nonetheless, referenda play an additional, equally important role in helping to reimagine and reshape democracy in the country following 36 years of civil war, making their use unique in the region.1

Background: Ethnic Diversity and Multiculturalism in Guatemala

Guatemala officially identified itself as a multicultural and multiethnic country following the end of a 36- year civil war in 1996. The violence of the war disproportionately impacted the western highland region, and resulted in 200,000 civilian deaths, 83 percent of which were indigenous people. Establishing the country as "officially" multicultural was intended to be a step toward remedying the ongoing, structurally-embedded discrimination that indigenous Maya people have faced since the colonial era. Recent estimates count indigenous people as anywhere from 40 percent to 55 percent of the total population, many of whom speak one of 23 different Mayan languages.2 Official recognition resulted in laws intended to prevent discrimination against indigenous people on the basis of language or dress, including the establishment of a national language academy with resources for bilingual education. These laws have been an important step in creating a more inclusive country. However, the cultural and often symbolic gains Maya people have experienced since the mid-1990s largely do not extend to the political realm, where participation by Maya people in national politics has remained limited. As of 2003, only 15 of the 158 representatives in the national congress were Maya.

Voter participation nation-wide is 60 percent, but is lower in indigenous areas and significantly lower among indigenous women. In one study, notably, indigenous people were more than twice as likely to say that they did not intend to vote in the future as their non-indigenous counterparts. While both indigenous and non-indigenous people faced bureaucratic barriers to voting, indigenous people were less likely to have the necessary identification documents and less likely to be on the registered voter lists. The same study found that indigenous respondents were significantly more likely to distrust both the electoral system and the candidates for office. Likewise, in my own and other researchers' experiences, the political attitude in many areas of the highlands is characterized by apathy or pessimism. This is partly what makes the phenomenon of anti-mining organizing, especially the widespread organization of community referenda, so remarkable.

Opposition to Mining: "The Third Colonial Invasion"

The first anti-mining campaigns in Guatemala began in 2005, initially in opposition to GoldCorp's Marlin mine. The mine, located in San Marcos department in the western highlands, was GoldCorp's largest operation in Latin America. It produced more than 28,000 ore tons per day at the height of its production. Since 2012, open-pit operations have ceased and the company plans to close the remaining underground operations later in 2017. The Guatemalan government was enthusiastic about the venture, which provided $51.93 million in total tax revenue between 2006 and 2009, 90 percent of which went to the national government. Officials at the Ministry of Energy and Mines were similarly excited about the possibility that Guatemala would come to be known as a "mining country," and envisioned Marlin mine as the first of dozens of potential mines in the highlands.

Community responses were more mixed. While some community members were enthusiastic about the economic advantages that employment with the mining company might afford them, many others were skeptical. People I spoke with said that, at least initially, they were lied to about what the project would actually be. Stories circulated in neighboring communities that the project would be an orchid farm. One of the men I spoke with said that he found this suspicious, and did his own investigation around the mining site, eventually discovering heavy machinery and excavation equipment. The initial confusion over what the project was contributed to a widespread distrust over the type and extent of benefits the project would actually offer.

Through contacts in the Catholic church, residents of the community neighboring Marlin mine reached out to environmental and human rights organizations for more information. Environmental scientists from Guatemala City came to the community to give presentations on the potential negative impacts of mining, raising concerns about the disposal of tailings and water pollution in an area with already-limited potable water. Eventually, community leaders made contact with organizers in Tambogrande, Peru, who shared advice based on their experiences with holding a community referendum. Although they faced legal controversy and attempts by the mining company to stop the process, residents of Sipacapa, Guatemala were eventually able to hold their own referendum in June 2005, shortly before Marlin mine became operational. The results were resoundingly against the project, with 11 of the 13 participating villages (akin to voting districts) voting against mining, one abstaining from voting, and only one village voting in favor.

In Guatemala, the national government retains the rights to the subsurface regardless of who the surface landowners are. As news about the Sipacapa referendum spread throughout the country, people in communities around the highlands began to investigate the status of licenses in their own municipalities. Residents were often shocked to discover the number of mining licenses granted on their lands without their knowledge. The majority of these licenses are held by international corporations. Many community members frame it in terms of a "third colonial invasion." As one schoolteacher expressed to me, "First, the Spanish came and took all the fertile lands. Then, the civil war. Now, they've come to take the rocks they left us with!"

Networks of people sharing resources began to form across the highlands. With the support of an environmental NGO sponsored by the Catholic church, as well as local and international organizations and volunteers, community members organized referenda asking fellow residents, "Are you in favor of mining in our municipality?" Community members base these votes within a framework of international accords that require the free, prior, and informed consent of indigenous people before industrial projects are installed on their lands.

Free Prior and Informed Consent

Guatemalan and international laws obligate the free, prior, and informed consent (FPIC) of any indigenous community that would be impacted by a proposed development project. FPIC is enshrined in several international legal accords, including International Labor Organization Convention 169 on the Rights of Indigenous Peoples (1989), a legally-binding international treaty that Guatemala signed in 1996. Convention 169 uses different standards for different situations, including participation, consultation, and informed consent; in the case of development projects involving mineral extraction, the ILO requires both consultation with communities involved, and their ongoing participation in the activities.

FPIC is also required by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007), which stipulates that indigenous communities have the right to establish their own priorities for development, and furthermore must give consent to the state prior to the establishment of extractive industry on their territory. While UNDRIP is not legally-binding on signatory countries, it does establish a set of standards that has slowly begun to impact operational norms. For example, although the law does not give communities veto power over a project's construction, it is in the company's best interest to promote public support-otherwise known as the "social license to operate." Failure to do so in other places (for example, Tambogrande, Peru) has resulted in widespread protest, bad publicity, and ultimately the shuttering of the proposed projects. One way to drum up such support is through public conversations and consultations.

There are several points of contention over FPIC, however. First, there is variation between the laws in what the "C" stands for"consent," or "consultation"? Free, prior, and informed consent means that indigenous communities must give permission before the national government or a corporation begins to extract (or indeed, even explore for) mineral resources on the community's territory, but consultation implies that the only thing that is needed before beginning extraction is to discuss impacts with community members. The difference in definition means that some interpretations view FPIC as binding, while others frame it as merely a tool for gauging a community's opinion.

Second, the laws in question do not specify what party is responsible for conducting FPIC. Mining companies argue that, since the national government is the signatory of any international laws, the obligation falls to them. In interviews I conducted at the Guatemalan Ministry of Energy and Mines, officials placed responsibility with the mining companies. The organizations that provide financial backing for the projects, such as the International Finance Corporation (IFC), have additional internal FPIC requirements with which the companies must comply, but recognize ILO 169 and UNDRIP as applying only to the national government signatories.

Third and finally, the laws in question do not specify what form "consultation" should take, nor how "consent" should be measured. For example, to comply with the FPIC requirements set forth in the terms of the loan they received from the IFC, GoldCorp set up information centers in several of the villages nearest the mine, and made the environmental and social impact reports available in Guatemala City and the department capital, twelve and six hours away by bus, respectively. Radio and newspaper announcements invited community members to make the trip to read the technical reports, and submit questions or feedback within a month. Per government requirements, any comments had to be written in technical language. The company later held video-recorded meetings in village centers, which community members described as celebrations in which attendees were presented with a feast of "the fattest cows", balloons, music, and games. People who came to the meetings signed their names on an attendance record, and these records were later held up as proof not only that communities had been consulted and consented to the mining project, but that they were ongoing "collaborators."

Community activists find this process unacceptable, and assert that the government and the mining company have failed to uphold their responsibility for FPIC. In response, they organize votes in the style of national elections, but without the support or endorsement of the national electoral tribunal. Because these votes are entirely community-run, participants do not need to be registered to vote with the national government, nor do they need government-issued identification. In many cases, children as young as six (the age at which they are most likely to be able to read the ballot) are allowed to participate, with the argument that natural resource issues will most profoundly impact their future well-being. Voting takes place after weeks of informational presentations, in Spanish and the Mayan language spoken locally, about mining and the rights of the community. Descriptions of the meetings indicate that community members have nuanced, often contentious debates about the potential risks and benefits of mining projects in their communities. While many of the referenda produce unanimous votes against mining, others indicate more division of opinion. However, the final results of every vote to date have rejected mining development.

Both the Guatemalan government and the mining companies in question object to community referenda. GoldCorp took the people of Sipacapa to court, seeking to have event declared illegal and the results nullified. While the court eventually found that the community had a legal right to hold the vote, the judges agreed with the company that the results were a nonbinding expression of community opinion that would have no legal impact on the mining project. Nevertheless, communities around the highlands considered this a victory. They were legally allowed to hold votes about mining, and proceeded to do so in waves over the next 12 years.

Protest and Plurinationalism

Community referenda are some of the first concrete instances wherein indigenous groups in Guatemala have sought to reach beyond the national regulatory system and take the structures of governance into their own hands. As such, they are attempts to reformulate the relationship between indigenous populations and the state. Although the votes use logistic, aesthetic, and performative elements associated with national elections, they are organized outside ofand organizers might say in opposition tostate electoral structures. The votes gain considerable publicity at the national level, and more than half a million individuals had participated in them by 2011. Recognizing this popularity, the national government has tried several times to bring the community consultation process under the umbrella of the state electoral system. Each time the government has made such a proposal, it has been met with community protests and even lawsuits. In 2011, the Guatemalan constitutional court found that the government's proposed regulation of community referenda was unconstitutional, because the government failed to adequately consult with indigenous communities in the process of designing it.

Referenda organizers' goals are partly to establish a "front" against mining in the western highlands. This is particularly manifest in Huehuetenango department, adjacent to San Marcos and the Marlin mine. All but two of the 32 municipalities throughout the department have held referenda, all of which resulted in the rejection of mining development on their land. As vehicles travel along the Panamerican highway, passengers are treated to the sight of signs posted at the borders of municipalities that have held referenda, indicating each as "territory free from mining."

Increasingly, referenda are used as part of a broader protest of issues adversely impacting indigenous communities. Referenda organizers have expanded their scope to include other natural resource-related concerns that have generated alarm in recent years, such as the construction of hydroelectric dams and African palm plantations, in addition to mining. Some ballots are so broad as to read "Are you in favor of megaproject development in our municipality?" Protest does not stop at the ballot box, however. Following the counting of ballots, referenda participants organize demonstrations, marches, and commemorative celebrations to reiterate the results. Cultural celebrations such as musical and dance performances and spiritual ceremonies are incorporated into these protests, making them powerful expressions of a politicized indigenous identity.

Anti-mining critics of community referenda sometimes point to the fact that they are legally non-binding, and argue that they are a waste of effort that might be better spent on other legal strategies. Although the results do not have a direct legal impact on mining outcomes, they are one part of the opposition to government-sponsored multiculturalism that relegates indigenous people to symbolic positions. Community votes point to a potentially transformative and plurinational political project that questions whether international accords protecting human rights are an extension of state power, or whether they can be leveraged directly by indigenous populations. Addressing a conference of community organizers in Mexico, one Guatemalan anti-mining activist stated, "We have false democracies. The states we have don't belong to us." Referenda organizers and participants are often excluded from the existing democratic and state structures, and are distrustful of the mainstream national politics dominated by non-indigenous people. By organizing community votes they see themselves as taking a step toward creating a distinctly indigenous form of politics, reclaiming their autonomy over ancestral lands. By using referenda to make a statement about mining, indigenous people are reshaping aspects of a democratic system that largely fails to represent them and making it their own.

1 The author has a PhD in sociocultural anthropology and spent a total of three years between 2007 and 2012 in Guatemala studying environmental and cultural politics. A detailed account of the research on which this essay is based is available in her dissertation, Economies of Representation: Mining, Communications, and Conflict in Guatemala. 2 Accurate estimates of demographic statistics were historically difficult to gauge because identifying oneself as indigenous carried a social stigma, resulting in underreporting of the indigenous population.