November 21, 2008
Dear friends,
Below, a Letter-Report to the Canadian ambassador to Guatemala. Rights Action encourages all of you to put this letter-report to as much use as you can:
EDUCATIONAL DELEGATION-SEMINAR
How about forming a group of concerned citizens from your neck of the woods to come on an educational trip to Guatemala and/or Honduras to see first hand what these mining related struggles are all about? We would be glad to plan and host such a trip for your group.
If you want to join Rights Action’s email list, and receive regular updates about our work, including mining related issues: http://www.rightsaction.org/lists/?p=subscribe&id=3
Recommended reading, “Investing in Conflict”: http://rightsaction.org/Reports/research.pdf
Recommending viewing, “All that Glitters Is Not Gold”: http://www.rightsaction.org/video/gold/
Questions, comments, suggestions about our work?
Many thanks.
Grahame Russell (& Annie Bird)
info@rightsaction.org, www.rightsaction.org, 1-860-352-2448
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SIGN-ON LETTER-REPORT TO CANADIAN GOVERNMENT ABOUT GOLDCORP'S MINING IN GUATEMALA
November 21, 2008
Ambassador Leeann McKechnie
(Karin Reinecke, Assistant to the Ambassador)
Canadian Embassy
13 Calle, 8-44, Zone 10
Edificio Edyma Plaza
Guatemala, Guatemala
Embassy of Canada
Apartado Postal 400,
Guatemala, C.A.
T: [502] 2363-4348
E: leeann.mckechnie@international.gc.ca
E: karin.reinecke@international.gc.ca
E: gtmla@international.gc.ca
Re: CANADA´S ROLE IN SUPPORTING THE HARMFUL ACTIVITIES OF GOLDCORP INC. (PREVIOUSLY, GLAMIS GOLD INC.) IN SAN MARCOS, GUATEMALA
Madame Ambassador,
We congratulate you on your recent posting as Canadian Ambassador to Guatemala.
The undersigned represent organizations and individuals concerned about Canada´s role in supporting the harmful activities of Goldcorp Inc. (previously, Glamis Gold Inc.) in San Marcos, Guatemala. These concerns have been the subject of petitions before the Inter-American Commission, the ILO (International Labour Organization), the UN Committee for the Elimination of all forms of Racial Discrimination, and the Guatemalan Constitutional Court, as well as numerous reports, urgent actions, documentary videos, etc.
In the attached report, we provide you with more details upon which these concerns are based. We summarize here our concerns.
As you know, the Guatemalan Ministry of Energy and Mines granted a license to Glamis Gold in November 2003 to engage in open-pit cyanide leach gold mining in San Marcos, the Marlin Project. There is little disagreement that this license was granted in violation of the State’s obligation to seek the consent of the affected Mayan communities under ILO Convention 169. The Government did not even attempt to fulfill this obligation. Goldcorp and its shareholders are taking advantage of this legal vacuum.
The consequences of this prior, fundamental and ongoing violation are threefold:
Arrested development. Before Goldcorp’s arrival, the Mayan communities now affected by gold mining operations were already weakened by chronic poverty and the legacy of the internal armed conflict. The Western Highlands was a region gripped by terror in the 1980s.
Goldcorp effectively took advantage of this weakness and has robbed the affected communities of the opportunity, slowly, at their own pace and through their own mechanisms, to heal the social fabric, strengthen indigenous organization and leadership, and direct their own future, on their own terms. This is the spirit of the 1996 Peace Accords and international law on indigenous rights. In violation of the letter and spirit of these agreements, Goldcorp offers individual contracts (for jobs and land) in place of collective decision-making, privatized social assistance in place of public and collective ownership of the development process.
Grave risks. The environmental, health, social, and cultural impacts of the Marlin Project were never properly explained, considered or understood locally before Goldcorp’s predecessor, Glamis Gold Inc., was given an exploitation license in November 2003. You are aware of the controversial and high-risk nature of cyanide leach mining.
Independent assessments have raised concerns about the Marlin Project in this regard. Given these risks, as the party interested in the profitability of the mine, Glamis Gold Inc.’s own public relations efforts could never credibly amount to what the State failed to do: seek the consent of the affected communities through indigenous institutions.
The result has been a legal and human rights abyss in which it is impossible to adequately assess and respond to the risks posed by the Marlin Project.
Conflict and the Criminalization of Resistance. Families and communities are divided. Poor householders, men and women living hand to mouth, face prosecutorial action initiated by Goldcorp. Acts of intimidation and violence and the heavy presence of police and military trigger fears from the recent past of internal armed conflict.
Only a good faith suspension of operations followed by compliance with Guatemala’s Constitutional and international obligations can reasonably address the stalemate. Failure to do so risks further violence as the interests of transnational extractive industries and Mayan communities remain on a collision course. Criminal prosecutions fit into a national pattern of State criminalization of resistance in defense of community rights.
Madame Ambassador,
The Canadian government can help to change this situation. In keeping with Canada’s support for the Guatemalan Peace Process, particularly the 1996 Guatemalan Agreement on Identity and Rights of Indigenous Peoples; for ILO Convention 169 (especially articles 6 and 15); for the International Convention on Civil and Political Rights (art. 1 & 27), the International Convention on Social, Economic and Cultural Rights (art. 1 & 27) and the Convention on the Elimination of all forms of Racial Discrimination; and for the National Roundtables held in Canada in 2007, we urge the Canadian government to work with the Government of Guatemala in order to address the continuing violation of the rights of indigenous peoples in Guatemala.
We urge you not to take refuge in a legal system characterized by impunity and disregard for human rights. This is not up to Canadian standards of behaviour at home or abroad, either by the Canadian government or by Canadian companies. The Canadian government should renew support for national and international efforts to make the impact of foreign capital in Guatemala completely transparent, accountable, and in compliance with international human rights obligations.
Madame Ambassador,
You can help to change the collision course currently being charted by Goldcorp Inc. by considering the following actions:
* Urge the Government of Canada to take immediate action to pressure for the suspension of the operations of Goldcorp Inc., pending a full and completely independent inquiry and compliance with Guatemala’s, Goldcorp’s and Canada’s human rights obligations;
* Urge the Government of Canada to support efforts by the Government of Guatemala to fulfill its human rights obligations; in particular, to adopt a policy in which consent of affected populations is understood as the only sound basis upon which to plan and sustain development;
* Urge the Government of Canada to continue the roundtable process in Canada on extractive industries in order to arrive finally at effective legislation in Canada that will help remedy and perhaps even avoid the situations such as represented by the Marlin Project.
We are ready to stand by you and support such efforts. We look forward to visiting with you directly in your office in order to discuss these measures.
Sincerely yours,
Grahame Russell (and Annie Bird), co-directors
Rights Action
info@rightsaction.org, annie@rightsaction.org
www.rightsaction.org
[Over 140 names of organizations and individuals signed this letter-report]
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SUMMARY OF KEY LEGAL AND HUMAN RIGHTS ISSUES
RELATED TO GOLDCORP Inc.’s MARLIN MINE
IN SAN MARCOS, GUATEMALA
A- THE RIGHT TO FREE, PRIOR AND INFORMED CONSENT
On 13 June 1996, Guatemala ratified ILO Convention 169. Articles 6 and 15 stipulate that, whenever indigenous peoples are affected by any State-sanctioned measure, and particularly where mineral extraction is involved, they will have the opportunity to engage in what can be summarized as free, prior and informed consultation that is aimed at achieving agreement or consent. Moreover, the consultation must occur through indigenous institutions.(i)
The ILO has clarified the meaning of article 6, leaving no doubt that the duty to consult binds the Government, and could in no way be adequately carried out by an interested party; in this case, Goldcorp Inc. (formerly Glamis Gold Inc.)(ii)
The difference between consent and the multiple and ambiguous definitions of consultation (from providing information to gathering views to a veto) is crucial in defining the process of deliberation that the State is obliged to guarantee. Indigenous peoples are not automatically granted a veto by virtue of ILO 169, alone. However, as the Inter-American Court has found, consent clearly can be required when major development projects are contemplated, particularly those that involve displacement of indigenous peoples from their land.
The degree of consultation or consent required depends in principle on the degree to which the substantive rights of indigenous peoples are affected.
In 2003, the United Nations Special Rapporteur on Indigenous Rights clarified this principle as follows:
* The issue of extractive resource development and human rights involves a relationship between indigenous peoples, Governments and the private sector which must be based on the full recognition of indigenous peoples’ rights to their lands, territories and natural resources, which in turn implies the exercise of their right to self-determination.
* Sustainable development is essential for the survival and future of indigenous peoples, whose right to development means the right to determine their own pace of change, consistent with their own vision of development, including their right to say no. Free, prior, informed consent is essential for the human rights of indigenous peoples in relation to major development projects, and this should involve ensuring mutually acceptable benefit sharing, and mutually acceptable independent mechanisms for resolving disputes between the parties involved, including the private sector.(iii)
In its November 2007 decision in the case of Saramaka vs Surinam, the Inter-American Court cited this report as part of its reasoning in adopting the criteria of free, prior, and informed consent (FPIC) where, as in the case before it, the territory of indigenous or tribal peoples is affected by major development projects.(iv)
Citing its earlier decisions, the Court found FPIC criteria to be necessary in this case in order to guarantee the equal enjoyment of rights under the Inter-American Convention on Human Rights (art. 1.1), especially rights to property in accordance with indigenous norms (art. 21), the right to juridical personality in defence of collective interests (art. 3), the right to judicial protection of collective interests (art. 25), and the obligation of the State to take legislative measures to implement international obligations (art. 2).
The Court interpreted these rights in a manner consistent with obligations under the International Covenant on Civil and Political Rights (art. 1, 27), the International Covenant on Economic, Social and Cultural Rights (art. 1, 27), ILO Convention 169, and the Convention on the Elimination of all forms of Racial Discrimination.(v)
B- THE RULE OF LAW IN GUATEMALA
Since 2004, when opposition to the mine began to grow, Glamis Gold Inc. (purchased by Goldcorp Inc. in August 2006) insisted that it was following the letter of the law. The Canadian Embassy and the World Bank’s International Finance Corporation have supported this position.
Part of the problem with this argument inheres in the weakness of the rule of law in Guatemala, well documented by the UN Mission that was deployed there from 1995 until 2003 (MINUGUA), and manifested today by the fact that an independent, UN-supported body, the International Commission against Impunity (CICIG), was recently set up to address the State’s weakness in responding to institutionalized impunity and corruption.
The problem is summed up in the well-known phrase in Latin America: “For my friends, anything; for my enemies, the law.”
In this sense, it will not have been a surprise to Glamis Inc. or the Canadian government to find that in November 2003, the State provided a license for open pit cyanide leach gold mining, highly controversial and dangerous on purely environmental terms, as though indigenous peoples did not exist in San Marcos, as though the State had not ratified ILO 169 seven years earlier, as though it was not bound by the 1996 Peace Agreements and a series of related international human rights instruments.
The Government of Guatemala continues to inform the ILO that it has not been able to apply ILO 169 provisions due to the absence of accompanying legislation. The Guatemalan Constitutional Court and the Committee on the Elimination of all forms of Racial Discrimination have noted the same legislative gap and exhorted the Government to address the problem. Yet, for twelve years, the Government has consistently failed to act.
Where the interests of foreign investment capital are concerned, however, Congress has demonstrated its capacity to act quickly.
Only one day was required, 15 May 1997, in order to pass major reforms to Guatemala’s Mining Law. The year before, in 1996, the Marlin Project had been acquired by Canadian company, Francisco Gold (later acquired by Glamis Inc.; now, Goldcorp Inc.). The Marlin Project took full advantage of the 1997 Mining Law reform, which was passed with little discussion. The law was drafted by the Arzu government just after the Peace Agreement was signed in order to attract foreign investment; for example, by reducing royalties from to 1% (earlier as high as 6%).
It is worth looking at some of the specific legal aspects of the license granted to Glamis Inc. (later, Goldcorp) in November 2003.
Just prior to receiving the exploitation license, in its November 2003 Marlin Project Technical Report, Glamis Inc. listed ten different kinds of legal permits, with a description of actions taken by the company to comply scrupulously with these legal requirements. None of these ten requirements makes reference to the binding duty of the State under international law to seek a consensus on the proposed exploitation before granting the license.
Yet, this requirement would have been well-known to Glamis Inc., as it was to the Canadian government and its embassy in Guatemala.
By this time, as the same document states, Glamis had already bought up 250 parcels of land from its Mam-speaking inhabitants.(vi) The technical report notes that several families living on the site of the mine “will be relocated”.(vii)
The exploitation license was granted by the Ministry of Energy and Mines shortly after this technical report by Glamis Inc. was issued in November 2003.(viii)
Later investigations, although still incomplete, strongly suggests that land purchases were made without ever giving the community as a whole the opportunity to understand and respond to the impact of these private purchases. Currently, individual families continue to face pressure to sell their land as Goldcorp continues the process of extending the reach of the mine.
As a new actor among communities struggling to maintain and heal their collective social and cultural fabric, torn by poverty and conflict, Glamis Inc. (now Goldcorp) proceeded to strengthen its position one individual contract at a time, whether for land or jobs.
The effectiveness of this strategy of reducing ‘development’ to jobs and robbing the community of the chance to consider its future collectively, depended precisely on three prevailing characteristics of the affected communities: chronic poverty, a weak and corrupt state, and the legacy of fear and mistrust resulting from the internal armed conflict and the longer history of racial discrimination and exclusion.
Ironically, it was the World Bank’s International Finance Corporation that put the issue of a consultation on the table, although weakly, as a requirement before granting a 45 million dollar loan to Glamis Inc. With great efficiency, by February 2004, a month before the IFC 45 million dollar loan was granted, Glamis Inc. prepared what it called an “Indigenous Peoples Development Plan”. This document describes the company’s establishment of a “community relations group” in 2003 to liaise with the affected population, provide information, and address concerns.(ix)
The company notes ILO 169 and the Indigenous Accord as the legal basis for the plan. The World Bank IFC’s website expresses great confidence in the steps taken by Glamis Inc. to “consult” with the affected population!
C. THE FAILURE OF THE GOVERNMENT TO SEEK A CONSENSUS WITH AFFECTED COMMUNITIES
Subsequent independent assessments have not justified the World Bank IFC’s confidence, and demonstrate the way that the Government and Glamis Inc. have bypassed the affected population by applying a deficient legal and administrative structure and process that ignores ILO 169 and the broader rights of indigenous peoples. For example, Glamis Inc. stated that its social and environmental impact assessment (EIA) was made available for public scrutiny, even announcing this in the Mam language through radio and newspapers. This explanation says volumes about the gap between law and reality, particularly the deliberately naive assumption that poor and mostly illiterate farmers in San Miguel were likely or able to locate and then work their way through the complicated impact assessment in order to flag possible concerns.
In other words, this aspect of Glamis Inc.’s so-called due diligence was carried out in a vacuum guaranteed to result in the rubber-stamping of their efforts. The disconnect between what the law required and what reality dictated would have been fully known to all of those involved at the local level, demonstrating either ignorance or lack of good faith on the part of Glamis Inc. and the Government.
Scrutiny of the EIA finally did take place through the assistance of national and international non-governmental organizations. An independent expert evaluation in February 2005 noted the following: “In the case of the Marlin Project, the main volume of the Marlin Project EIA is 540 pages long. Including the annexes, it is almost 2000 pages long, and cost roughly $100 to photocopy. Such a huge and costly document is hardly accessible to campesinos. Unfortunately, it is not organized in a way that would allow the public to readily access important details. For example, much of the information is presented in Anexos 13.1 A thru 13.1 I, but all of these anexos, confusingly, have exactly the same title! Most importantly, this EIA simply fails to provide some of the most basic technical details needed to answer fundamental questions.”(x)
Corroborating the importance of these concerns, a March 2006 audit of compliance with environmental and social impact requirements, paid for by Glamis Inc. itself, concluded that there were unexplained lapses in monitoring of surface and ground water for possible contamination, key concerns of the affected population.(xi)
The World Bank’s own Compliance Advisor Ombudsman acknowledged the inadequacy of the IFC’s due diligence before granting a start-up loan.
Canadian non-governmental organizations responded with concern to this admission in a letter dated 12 June 2006 to the World Bank. This letter cites a leaked draft report by the CAO (dated September 2005).(xii) The draft CAO report states: “IFC analysis of the potentially negative social impacts and the appropriateness of the proposed mitigation measures has not been comprehensive or explicitly recorded in project documentation. Further identification of any potential health risks from a single-status workforce, crime, strains on social infrastructure and cultural impacts would have enabled a more complete analysis of the appropriateness of the proposed mitigation measures and the monitoring of their effectiveness.”(p.27)
“The lack of a clear policy on human rights and the management of security forces is a significant oversight on the part of both the company and IFC to adequately safeguard against the potential for violence. IFC failed to make any consideration of potential for local-level conflict in its appraisal or advice to the Sponsor.”(p.35/6)
Graham Saul, Director of International Programs at Friends of the Earth Canada, stated in response to the leaked report that “the Canadian Government should ensure that this project is suspended until communities are properly consulted and the environmental problems and human rights conflicts are addressed.”(xiii)
Our concerns go beyond the inadequacy of the environmental and social impact assessment. We believe that this and other problems associated with the Marlin Project all begin with the failure of the Government to seek the consent of the affected population.
The fatal weaknesses of the so-called consultation process include the following:
* it is the obligation of the State, not the interested party, to seek a consensus with affected indigenous communities;
* the State granted the exploitation license in November 2003 without ever seeking a prior consensus with the affected communities in accordance with indigenous institutions;
* as the interested party, the company could not credibly carry out any sort of consultation to consider the potential adverse consequences of the mining activity;
* the company’s public information campaign circumvented indigenous forms of consultation and decision-making and in no way fulfilled the State’s obligation in this regard;
* rather than strengthening the collective social fabric of impoverished indigenous communities, weakened by the enduring legacy of the internal armed conflict, the company’s engagement with local actors further weakened the social fabric through individually negotiated contracts for land and jobs.
D. THE GROWING DEMAND FOR COMPLIANCE WITH STATE OBLIGATIONS
Local and national leaders and organizations have taken great risks to challenge the impunity that underlies the State’s failure to respect and defend the rights of indigenous peoples.
As you are aware, on 4 September 2008, a waiting gunman called out the name of environmental lawyer Yuri Melini and then shot him four times. Mr. Melini had successfully challenged before the Constitutional Court sections of the Mining Law that weakened environmental protections. This was almost certainly the motive for the attempted assassination, as reported by Amnesty International.(xiv)
As you will know, attempted assassinations for political and criminal motives are, sadly, not cause for surprise in Guatemala.
What is shocking and unacceptable, however, is the willingness thus far of the Canadian Government to turn a blind eye to Goldcorp´s exploitation of civil and administrative laws that violate binding international norms and of criminal laws that are enforced in a racially discriminatory manner.
The latter pattern is an issue that goes beyond the behaviour of Goldcorp and is currently under discussion in the Public Ministry. Local and national opposition to the Marlin Project began in 2004 and intensified throughout 2005, when gold production began. San Miguel municipality was most affected, with neighbouring Sipakapa municipality affected by 15% of the proposed mine area.
Indigenous leaders in neighbouring Sipakapa learned from San Miguel’s ongoing experience. The Sipakapa municipal council began to take steps in January 2005 to carry out its own consultation on mining activity, in spite of rather than with support from the State. Glamis Inc. directly and openly opposed this initiative from the start. It went so far as to issue statements suggesting malfeasance, finally seeking a court injunction against the consultation days before it was to take place in June 2005.
By the time the consultation took place, with a resounding ‘no’ to mining, the case was before the Guatemalan Constitutional Court. All of this unfolded in a climate of threats and intimidation reported both by opponents of mining and by Glamis Inc.
The Constitutional Court decided in May 2007, two years after the consultation in Sipakapa, that the consultation was legal but not binding, and urged the Government to develop legislation. Already in 2006, the ILO Committee had urged the Government to adopt legislation for the implementation of ILO 169 and expressed concern about irreparable harm occurring due to the delay. To date, however, there has been no legislative response to the Constitutional Court’s exhortations. In fact, there are reports that other legislation is being developed in Congress that would further weaken the right of indigenous communities to carry out consultations.
By March 2006, the situation was troubled enough for the World Bank to suggest to Goldcorp a suspension of exploration in Sipakapa, pending further consultation. The company responded two months later, rejecting the suggested suspension, but stating, “we will not conduct exploration activities in areas where we do not have the consent of the local population,” and acknowledging that there was division among communities for and against the mine. The company committed itself to whatever was necessary to achieve “breakthroughs” in a “culture of distrust” against a “complex cultural, historical, and political backdrop.”(xv)
If Goldcorp Inc. is serious in recognizing the need for the consent of affecting communities, then it must suspend its operations until this consent can be obtained in accordance with ILO Convention 169. As long as Goldcorp Inc. takes advantage of the State’s refusal to comply with these obligations, then Canadian interests are fuelling conflict in Guatemala.
The so-called Human Rights Impact Assessment, initiated by Goldcorp shareholders in 2008, lacks independence by any standard.
Regardless of the outcome of this assessment, the very process undermines legal norms under international law, presuming to substitute voluntary compliance by the interested party for the State´s binding obligations.
Resolving the stalemate will not be easy, but the Canadian Government and Goldcorp Inc. must begin by recognizing the legitimacy of indigenous forms of organization and decision-making. The Guatemalan Constitutional Court, itself, found that the consultation process in Sipakapa was legitimate. A rigorous legal analysis recently published in a Canadian law journal supports the view that the Sipakapa consultation and its result was a legitimate expression of indigenous law since it was carried out in accordance with indigenous structures and processes and reflected the will of the communities affected.(xvi)
However, in the absence of remedial action by the State that recognizes the legitimacy of these consultations, and in the silence maintained by Goldcorp with the support of the Canadian government, the situation remains prone to violent conflict.
E. “THEY SAID THERE WAS NOT LAW FOR ME”: THE CRIMINALIZATION OF RESISTANCE
On 9 October, 2008, two young indigenous mothers from one of the affected communities in San Miguel stood on a stage in a large auditorium in San Carlos University and gave testimony before the Permanent Peoples’ Tribunal (PPT). Behind them sat members of the Peoples’ House of San Miguel, all of them indigenous community leaders.
This tribunal was the latest of more than thirty PPT hearings held around the world since Bertrand Russell first set up this ´court of opinion´ in 1968 as a way to respond to the ´crime of silence´.(xvii)
The Guatemala PPT included experts with distinguished reputations from Argentina, Venezuela, Spain, and Haiti. The presiding member of the Tribunal participated earlier this year in a PPT in Colombia alongside Nobel Peace Prize winner, Adolfo Pérez Esquivel.
Far from the floor of the Toronto Stock Exchange, where gold prices have risen dramatically since 2005, and further still from the logic that prevails there, the two women from San Miguel described the costs of the mine: divided communities and families, threatened water supplies, homes damaged by repeated explosions, the risk of contamination by cyanide and metals, and a climate of fear and intimidation. Those voicing opposition to the mine have been cut out of development projects offered by company.
Now, however, these women are also worried about arrest orders against them. They are among eight women alleged to have taken illegal actions earlier this year to obstruct mining operations. Last year, Goldcorp pushed for similar prosecution against seven men alleged to have engaged in violent protest. In that case, with unprecedented efficiency, the Public Prosecutor achieved convictions against two men, now under appeal. Eight women now await their turn.
Meanwhile, in relation to reported threats and intimidation against Goldcorp opponents, the Public Prosecutor has not taken any action.
One of the accused women described to the Permanent Peoples’ Tribunal the pressures she and her neighbours had faced, and the legal abyss in which they found themselves: “We don´t have money to go looking for the law, and they said there was no law for me.”
The company easily exhausts the financial resources of both defendants and legal representatives, but only increases the resistance through what is perceived as a criminalization of protest and social conflict originating in the violation of indigenous rights. In the absence of any remedial action by the State in compliance with its international human rights obligations, municipalities across the Western Highlands have assembled during the last three years and consistently voted ´no´ to future mining activity.
Meanwhile, the Government pushes forward with the goal of turning Guatemala into a net exporter of energy under the Mesoamerican Project (the most recent incarnation of the Plan Puebla Panama), able to provide cheap electricity for extractive industries such as Goldcorp.
Unless the deadlock between foreign capital and local autonomy is addressed quickly, further conflict appears to be inevitable.
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FOOTNOTES
i- Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, Adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its seventy-sixth session entry into force 5 September 1991.
Article 6:
1. In applying the provisions of this Convention, Governments shall:
(a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) Establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) Establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
Article 15:
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
ii- See: http://www.ilo.org/public/english/standards/egalite/itpp/convention/index.htm
iii- Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2001/65, E/CN.4/2003/9021, January 2003, para. 66. See: http://www2.ohchr.org/english/issues/indigenous/rapporteur/reports.htm
iv- Corte Interamericana de Derechos Humanos, Caso del Pueblo Saramaka vs. Surinam, Sentencia del 28 de noviembre de 2007, (Excepciones Preliminares, Fondo, Reparaciones y Costas), para. 134-135; para. 214(8).
v- Corte Interamericana de Derechos Humanos, Caso del Pueblo Saramaka vs. Surinam, Sentencia del 28 de noviembre de 2007, (Excepciones Preliminares, Fondo, Reparaciones y Costas), para. 92-98.
vi- Glamis Gold Marlin Project Technical Report, November 11, 2003
vii- Ibid., p. 11.
viii- MEM Resolution No. 3329, dated November 2003. See: www.glamis.com/properties/guatemala/AMR/Enviro%20Audit%20and%20Review.pdf, Appendix A.
ix- 2004 Marlin Mining Project, Indigenous Peoples Development Plan, Submitted to the International Finance Corporation by Montana Exploradora de Guatemala S.A., February 19, 2004. Montana Exploradora was wholly owned by Glamis Gold, since purchased by Goldcorp. See: http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTOGMC/0,contentMDK:20421886~pagePK:210058~piPK:210062~theSitePK:336930,00.html
x- Review of the Glamis Gold Marlin Project EIA, Guatemala, by Robert E. Moran, Ph.D. (Water Quality/ Hydrogeology/ Geochemistry), Golden, Colorado, U.S.A, February 2004. See: http://www.miningwatch.ca/index.php?/Guatemala/Moran_Glamis_en
xi- Marlin Mining Project 2005 AMR, Attachment C, 2005 Environmental Audit and Review, Guatemala, March 2006. Prepared for: Montana Exploradora de Guatemala, S.A. Prepared by: MFG, INC. consulting scientists and engineers, 3801 Automation Way, Suite 100, Fort Collins, Colorado 80525. See:
www.goldcorp.com/_resources/project_pdfs/marlin/Attach%20C%20Env%20Audit%202005.pdf
xii- Letter dated 12 June 2006, from BIC, Friends of the Earth, and Halifax Initiative, to the World Bank Group. See: www.bicusa.org/Legacy/Statement%20on%20Marlin%20-%20June%202006.pdf
xiii- See: http://www.miningwatch.ca/index.php?/World_Bank/CAO_Glamis_NR
xiv- See:
-8e5e-43ea85d15a69/amr340212008en.htmlhttp://www.business-humanrights.org/Links/Repository/664457/link_page_view
xv- Letter of James S. Schenck, Manager for Sustainable Development Guatemala, Glamis Gold, Ltd., dated 22 May 2005, to Mr. Amar Inamdar, Senior Ombudsman, Office of the Compliance Advisor/Ombudsman, World Bank Group. See: http://www.business-humanrights.org/Links/Repository/664457/link_page_view
xvi- Sander, Jennifer, Mehranvar, Ladan and Imai, Shin, Breaching Indigenous Law: Canadian Mining in Guatemala (September 14, 2007). Indigenous Law Journal, 2007, at 116.
xvii- As of writing, the final resolution of the Guatemala PPT is pending. Nobel Peace Prize winner Adolfo Pérez Esquivel presided over a recent Permanent Peoples’ Tribunal in Colombia (July 2008). In the resolution of that tribunal, responsibility for human rights violations in Colombia is assigned not only to the State, but also to transnational companies for a range of omissions and actions, including “the violation of collective rights to land, to natural resources, to self-government, the right to participation and self-development of indigenous peoples.” [“Por la vulneración de los derechos colectivos a la tierra, a los recursos naturales, al autogobierno, a los derechos de participación y al desarrollo propio de los pueblos originarios.”] See:
http://colombia.indymedia.org/news/2008/07/90686.phphttp://www.amnesty.org/en/library/asset/AMR34/021/2008/en/ccca8b62-7da3-11dd
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FOR MORE INFORMATION ABOUT THE ISSUES IN THIS LETTER AND REPORT, CONTACT:
Grahame Russell, info@rightsaction.org, or Annie Bird, annie@rightsaction.org. www.rightsaction.org
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