Caribbean & Central America - January 2024

The Inter-American Court of Human Rights (Corte-IDH) has ordered Guatemala to adopt new laws on indigenous land rights in a ruling on the country’s massive Fénix nickel mine, which could have implications for other mining projects in the country and the region more widely.

On 15 December the Costa Rican-based court ruled that the state of Guatemala had violated indigenous rights by allowing nickel mining on land in El Estor municipality, Izabal department, where members of the Maya Q’eqchi’ community ‘Agua Caliente’ have lived for centuries. The decision ordered that mining activity end immediately, that Guatemala begin awarding a land title to the community within six months, and that it also create a development fund.

The mine is owned by Compañía Guatemalteca de Níquel (CGN), a subsidiary of Switzerland-based miner Solway Investment Group, which also owns refining company Compañia Procesadora de Níquel (ProNiCo). Solway said it agreed with the decision, but it stressed that the ruling does not impede mining on areas outside community lands. Delineating these lands is one responsibility of the Guatemalan government stipulated by the ruling. In response to the ruling, Oscar Pérez, vice minister for sustainable development at the energy & mining ministry (MEM), said that officials will analyse it in detail in order to decide next steps. It is worth noting that in July 2019, Guatemala’s constitutional court (CC) suspended the operating licence of the mine on the grounds that it violated the right to consultation with local communities. It then upheld its ruling in June 2020 [EB-20-07], before the MEM suspended the mine’s operating licence in February 2021. The mine was the cause of significant social unrest during that time [SSR-21-12], and tensions continue.

Guatemala is a hotbed of mining activity and other projects have also run into controversy. For example, in September 2018 Guatemala’s CC upheld a ruling [EB-19-09] issued by the supreme court (CSJ) in July 2017 which suspended the licence of the Escobal silver mine, one of the largest in the world, which was owned by Canada’s Tahoe Resources. The CC agreed with the argument put forward by the defence that there had been a failure to adequately consult the local indigenous Xinca community as required by International Labour Organisation (ILO) Convention No 169 on the rights of indigenous and tribal peoples. Operations remain shuttered as work continues on a consultation with the Xinca community.

Recent attempts to impose moratoria on new mining licences in order to draft a new mining law have failed. The first was made by former president Otto Pérez Molina (2012-2015) shortly after coming to power, while further attempts were made by the now defunct left-leaning Convergencia party in 2016 and the centre-left Movimiento Semilla (Semilla) party in 2022. With Semilla presidential candidate Bernardo Arévalo taking office on 14 January there could be a further attempt to update the mining law, but the new president faces a battle to govern which could push mining down his list of priorities.

However, the impact of the ruling will be felt beyond Guatemala’s borders. Leonardo Crippa, a lawyer with the US-based legal advocacy organisation Indian Law Resource Center who represents the community, emphasised the far-reaching implications of the ruling. “All countries in Latin America are going to look at this decision,” Crippa told the Associated Press in an article published 17 December. “All courts will have to secure that any decision made on mining, on indigenous lands or titling of indigenous land, is done in a way that is consistent with what the court decided,” he added.

Impact on region?

Opposition to mining has been increasing throughout Central America, and the massive Cobre Panamá copper mine in Panama was shut down in 2023 following mass protests [EB-23-12]. The Corte-IDH’s latest ruling could embolden protest groups and further complicate operations for miners in the region.