Denouncing Law on Consultation tabled without prior consultation
ESCR-Net member Consejo de Pueblos Wuxhtaj (Council of the Wuxhtaj Peoples), an affiliate of the Consejo de Pueblos Maya (Plurinational Council of Maya Peoples) in the Department of Huehuetenango, Guatemala, has denounced the introduction of the “Law of Consultation with Indigenous Peoples Pursuant to ILO Convention 169” by Congressman Oliverio García Rodas on February 26, 2018.
According to this indigenous organization, the proposed law was delivered without consulting any indigenous peoples and without proposing a mechanism that would allow indigenous peoples to be made aware of it before submitting it for approval. Indigenous leaders assert that the proposed legislation was crafted to silence indigenous peoples and protect the transnational corporations that plunder their territories.
As documented below, the opposition of indigenous-rights organizations to the proposed law derives from several inadequacies:
The Consejo de Pueblos Wuxhtaj articulated the perception that the law tabled by García Rodas contradicts the spirit of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labor Organization (ILO). According to ILO Convention No. 169, States Parties have obligations to uphold the right of the peoples concerned to decide and control their own priorities for the process of development, as well as to participate in the formulation, implementation, and evaluation of regional development plans which may affect them directly. Much more than an administrative procedure, indigenous-rights organizations insist that prior consultation is inherent to the ability of first nations peoples of Guatemala to exercise self-determination and, thus, should not be manipulated to diminish these very peoples’ rights. The Consejo voices the belief that the goal of prior consultation must be to guarantee and promote rights, not to negotiate the cost of the harms caused by dispossession from their ancestral lands.
The Consejo de Pueblos Wuxhtaj also denounces the manner in which the proposed law reserves the State’s legal authority to define which matters will or will not be subject to consultation. That is, the proposed law denies indigenous peoples a voice in determining the issues and realms that warrant consultation. Under this law, the documents comprising the record on a matter for consultation (including studies, legal decisions or reports related to the issue requiring consultation) would not be subject to prior consultation. In addition, any consultation that would implicate issues protected by financial or agro-industrial interests would be prohibited, despite the fact that it is frequently projects within these sectors that most significantly impact the rights of indigenous peoples in Guatemala. Among other spheres that would not be considered subject to consultation are the following: administrative measures; ordinary laws of a general nature; construction and maintenance of infrastructure; general provision of public services; budgets; and neither external, nor municipal borrowing. As such, indigenous-rights organizations maintain that the proposed law would limit the scope of indigenous citizenship.
The Consejo de Pueblos Wuxhtaj and the Consejo de Pueblos Maya warned that the Law of Consultation constitutes an attempt to weaken the organization of surviving indigenous peoples who care for and defend land, water, and forests. They caution that the proposed law will be used to undermine efforts to conserve and pass down ancestral knowledge, ultimately destroying the authority of indigenous people to serve their communities. Finally, both organizations are calling for indigenous peoples’ right to consultation to be regulated under the Political Constitution of the Republic of Guatemala, as is the case regarding the right of indigenous peoples to self-determination.