Course:CONS370/Projects/The ongoing resistance by the Xinca Peoples to the Escobal mine in Guatemala

Introduction

This page is a case study into the ongoing local and Indigenous (Xinka) resistances to the Escobal mine in Santa Rosa, Guatemala, which have gathered momentum since 2010. The mine was purchased by Pan American Silver in 2019, a Canadian mining company whose headquarters are based out of Vancouver, British Columbia (founder and chair is Ross Beaty, financial supporter of the University of British Columbia’s Beaty Biodiversity Museum) (Pan American Silver, 2020). The Escobal mine is just one example of the many Canadian mining companies extracting in Latin America, and has a convoluted history involving assassination, imprisonment of community leaders, and armed forces sent to occupy Indigenous communities (Solano, 2015). Pan American Silver’s company image touts sustainability while the corporation perpetrates the same criminalization and violence of its predecessor, Tahoe Resources (Environmental Justice Atlas).

Land Acknowledgement and Positionality Statement

This case study was researched and written on the traditional, ancestral, and unceded Coast Salish territories of the Musqueam, Squamish, and Tsleil-Waututh Nations. The three authors are Settlers studying at the University of British Columbia (UBC), which occupies the land of the Musqueam, People of the River Grass.

This case study is focused on Guatemala, where the Indigenous People recognized in the Guatemalan Constitution include the Garifuna, Xinca, and 22 linguistic Mayan groups (Kuper, 2012).

We would like to acknowledge our position as Settlers on unceded Indigenous land in what is known as Canada, who are studying a mining conflict affecting the Xinca people on their traditional territory in what is known as Guatemala. None of us has been to the area directly affected by the Escobal mine.

While in some ways, as UBC students who have not visited the area, we may appear to be removed from this conflict, it is important to recognize that finance and ownership connect us in ways that may not be explicit: the Chairman and founder of the current owner of Escobal mine, Pan American Silver, is Ross Beaty, who is a major financial contributor to UBC and to the eponymous Beaty Biodiversity museum.

Map of Guatemala

Description

Historical Context of Mining in Canada

Canada is known globally as a “mining power” because of its long and strategic history of Industrial practices in Latin America, with 70% of the world’s mining shares issued by the mining sector being traded on the Toronto Stock Exchange (Working Group on Mining and Human Rights in Latin America, 2014). This influx of Canadian mining powers into Latin America is indicative of successive Canadian governments’ intentions regarding foreign policy towards developing countries: government officials have spoken on several occasions about how the mining sector plays a fundamental role in the Canadian government's efforts to secure a new policy of cooperation with foreign states in which the security of the Canadian state is central (Working Group on Mining and Human Rights in Latin America, 2014). This materializes in both financial and political backing of mining corporations by the Department of Foreign Affairs and International Trade, Export Development Canada. This issue was quite recently exacerbated as the Guatemalan government has appointed a former mining executive [to what post?], further worrying both Indigenous and non-Indigenous local communities (Moore, 2020).

While this is ongoing, there is an inadequate framework within the Canadian government to deal with Human Rights Violations in host countries, taking advantage of their relative power (Laverdière, 2013). Companies do business under the impression that there is no way to be held legally or politically responsible in Guatemala while operating under conditions of historic and ongoing exploitation, racism, repression, corruption, and impunity (Russell, 2020).    

The Mine

The Escobal mine, currently owned by Pan American Silver is a polymetallic silver mine, where they extract zinc, lead, silver, and gold (corporate website: here). Pan American Silver gained control of Escobal when it bought Tahoe Resources in 2019. The Escobal mine is in Santa Rosa, Guatemala where it has been operationally on and off since the final authorization of the extraction license to Tahoe Resources in 2013 (Solano, 2015). The concession was granted for 25 years with extraction beginning in 2014. The concession is located 70 kilometers southeast of Guatemala City and 3km from where the mining administration operates from the town of San Rafael las Flores (Solano, 2015).

The mineral resources associated with the Escobal project were originally discovered in 2006 by Glamis Gold (a gold mining company with offices both in the US and in Canada); in 2007 the Guatemalan Ministry of Energy and Mines passed Resolution No.44 which launched the beginning of the OASIS license, one of three (Canadian) Escobal Exploration Licensed projects (Tahoe Resources Inc). Before this, the area has a long history of mining which dates back to 1850 and has roots in the Catholic church (Solano, 2015). The basis of the local economy in this region, however, is built upon agriculture and ranching, with onions and coffee as the principal crops (Lastearria-Cornhield, 2003).

Xinka, Resistance and Retaliation

The Xinka Parliament issued a press release speaking to Pan American Silver’s apathy in the Escobal mine’s ongoing social conflict with the Xinka, which has been called one of the most significant human rights conflicts in Latin America (pdf link here) (Earthworks). The document continues by stating that the project puts the cultural, spiritual and physical survival of the Xinka population at risk and that consent will never be given.

Peaceful resistance began among community members in 2007 when the OASIS license was granted, and by 2010 marches and municipal referendums were taking place (Solano, 2015). The Committee in Defense of Life and Peace of San Rafael Las Flores was founded in 2010, created by farmers, church-goers and other villagers who were concerned about environmental impacts from mined metals (Solano, 2015). Indigenous community members who form the Xinka Parliament in Santa Rosa proposed the formation of the church group to work with communities in their defense of the land, and thus CODIDENA was conceived (Diocese Council for the Defense of Nature) (Solano, 2015). CODIDENA includes pastoral organizations from each municipality and helped bring together organizers: the Committee in Defence of Life and Peace, the Madre Selva Collective, the Xinka Parliament, and the Centre for Legal Environmental and Social Actions (CALAS) (Solano, 2015).

The groups organized peaceful blockades of roads, and in 2018 there was a more-than-2000 person march of Xinka individuals through the streets of Guatemala City, rallying for permanent closure of the mine (McSheffrey, 2018).  Corporations have not been transparent with the Santa Rosa community since the beginning, as it does not state within Guatemalan Mining Laws that companies must inform communities. Instead there was note of an advertising campaign promoting their business in the name of “progress and development” by posting visual propaganda in communities (Solano, 2015). This was done in an attempt to sway the public into granting the company what is called a “social license to operate”. This is essentially a non-legal agreement between a local community and a corporation saying that the community accepts the mining operation (Costanza, 2016).  

Check out photos from the protests here: https://nisgua.org/protest-supporting-xinca-people-self-determination/     

Current Operational Status & Background on Pan American Silver

As mentioned, on the Pan American Silver corporate site, operations are currently on hold pending completion of an ILO 169 consultation process, court approval and community engagement efforts to build a social license (Website here). Pan American Silver gained control of Escobal when it bought Tahoe Resources in 2019. The mine is still closed as the ordered consultation is ongoing. Out of 616 documented mining conflicts around the world, more than a quarter are associated with Canadian companies, of which Pan American is a forerunner. The history of Pan American Silver’s idea of appropriate community behavior can be found here:  miningwatch.ca.

Pan American Silver paints a picture of sustainability on their website and public outreach initiatives. However since purchasing the Escobal mine, they have not released a sustainability report for the 2019 operational year. In the introduction to their last sustainability report from 2018, Ross Beaty (the founder and chairman) discusses his goals in terms of climate change and working conditions for his employees while not addressing Indigenous communities affected by his operations. Later in the document, it states, “We similarly have not identified any operation to be at risk for violations of Indigenous rights” which is then immediately footnoted as not applying to their recently purchased project involving the Xinka and Escobal (view document here).

Tenure arrangements

Historically Inequitable Land Distribution

Guatemala is characterized by historically unequal land distribution with high levels of concentration of land tenure and ownership held in the hands of very few. This concentration is evidenced by the country’s most current Gini coefficient having risen from 0.82 (1979) to 0.84 (2003) and 78% of arable land distributed to only 8% of landholders (Tramel, 2019). Privately held land is most often utilized for industrial purposes such as mining, logging, and plantation agriculture (Jones, 2012). Although Indigenous People (IP) are customary landowners and account for the majority of the population, there is severe lack of legal recognition and titling of their ancestral territories (Jones, 2012). Yet access to land is essential. This is especially so when more than 60% of Guatemala’s population lives rurally with agriculture at the core of livelihood (Lastearria-Cornhield, 2003). A key contributor to the inequitable distribution of land can be attributed to insecure land tenure. According to Lastarria-Cornhield (2003), greater than 50% of landholdings in Guatemala are without updated registered titles. The lack of land titling is suggestive of how deeply rooted issues surrounding land are. Although the 1996 Peace Accords, that took place at the end of Guatemala’s civil war, were intended to have led to greater equity in land distribution, land reformation has been a slow process (Vidal, 2018). The concentration of power and encouragement of transnational corporations, such as Pan American Silver is illustrative of these inequities.

Escobal Concession

With regards to the Escobal mine, the Escobal mining concession was officially granted on April 3rd, 2013 for a duration of 25 years. It is registered as LEXT-015-11 according to the Guatemalan Ministry of Energy and Mining (MEM) (Solano, 2015). While the majority of the Escobal mining concession takes over area in the municipality of San Rafael Las Flores in the department of Santa Rosa, it extends beyond into the municipalities of Casillas (department of Santa Rosa) and into the municipalities of Mantaquescunitla and San Carlos Alzatate (department of Jalapa) (Solano, 2015). The Escobal concession is surrounded by a mining project much larger that involves other concessions for exploration and extraction in the nearby areas (see maps of licenses here for more information).

Xinka Parliament are the customary owners of the land with collective rights. The Accord on the Identity of Rights of Indigenous People (AIDPI) of 1995, that was signed by the Guatemalan National Revolutionary Unity (URNG) and the State of Guatemala in 1996, was especially important in recognizing Indigenous People (IP) and their collective rights, highlighting the need to affirm IPs' rights to use and participate in the conservation of resources in their lands, including the need to restructure land tenure and restore communal land (Velasquez & Ford, n.d.). However, considering the current status of the Escobal mine and nearly a decade of Xinka resistance, it seems that there has been little action apart from this recognition. Meanwhile, the Guatemalan state is considered to be the "legal owner" of the land and as such have used this status to provide the mining concessions to the various Canadian mining companies, now Pan American, who stand as the license holders. In practice, the Guatemalan State has ignored nearly all of Xinka's rights to their lands and have provided Pan American with access, withdrawal, and management rights for the duration of up to 25 years starting in 2013 when the Ministry of Energy and Mining (MEM) officially granted the concession to Tahoe Resources.

Rights-based Approach to Land

There are a variety of national and international agreements and guidelines that Guatemala has signed onto that recognize Indigenous People and their rights, including those to communal and collective tenure, yet little has been done to legally enforce these commitments. The 1985 Guatemalan Constitution, for example, outlines in Article 39 that private property is an “inherent ‘citizen right’” while Article 69 references the protection of communal and collective tenure (Tramel, 2019; Lastarria-Cornheil, 2003). The AIDPI signed by Guatemala additionally recognizes collective rights of IP and their right to “full participation in decision making processes at all levels” (Sieder et al., 1997). A key contribution of the AIDPI included the establishment of 5 official commissions which include a “Commission on Communal Lands.” This commission was created to make legislative reform recommendations to Congress and was to be composed of equal representation and participation by government and IP. However, at the time there was no mandatory obligation for Congress to take up these recommendations and there was no payment for the work of the IP representatives (Sieder et al., 1997). Finally, the UN World Committee on Food Security and Nutrition (CFS) Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries, and Forests (Tenure Guidelines) of 2012, was endorsed by Guatemala and formed the basis of the nation’s 2014 Agrarian Policy. A key component in these tenure guidelines included the coupling of tenure with human rights, focusing on access and control over land and resources for the most marginalized citizens (Tenure Guidelines 1:1 as cited in Tramel, 2019). However, the implementation of these guidelines in Guatemala’s 2014 Agrarian Policy seems to be skewed as noted by the lack of rights recognition for many IP, including the Xinka in relation to the Escobal mine. What remains in question is how this national and international recognition of communal rights will truly be implemented in a way that affirms the rights to secure land tenure for the Xinka, considering their persistent and peaceful resistance struggles.

Administrative arrangements

Current Situation

The Escobal mine is located in San Rafael las Flores in the department of Santa Rosa in southeastern Guatemala. The mineral extraction license for Escobal is 79.9 square kilometers. The Pan American Silver currently has 100% ownership of the mine. They own mining concessions for about 3,000 square kilometers in the surrounding departments of Santa Rosa, Jalapa and Jutiapa. Their website describes their current administrative arrangements as follows. Operation is suspended pending the completion of a consultation process in line with the International Labor Organization 169 (ILO 169). They are waiting for court approval and say that they are engaging the community to build a social license.

A press release from the Xinka Parliament of Guatemala attempted to clarify that the consultation is not a simple administrative process as the company has tried to present it. The purpose of the consultation is to obtain consent, not come to a mutual agreement. They asserted that they remain opposed to the mine.

According to Pan American Silver website, this mine uses underground longhole stoping methods to mine 4,500 tonnes per day.

Timeline

This timeline is based on information from Solano (2015) and "Proyecto Minero El Escobal, Guatemala" (2019)

2006

Glamis Gold’s subsidiary Entre Mares discovered mineral deposits in the area where Escobal mine holds license today

2007

March: Ministry of Energy and Mines passed Resolution No. 44, granting a license for an area of 50km2 to Oasis (the requested concession for what is currently Escobal mine). This year, Goldcorp acquired Glamis Gold and formulated their company plan, which was to process 3,500 tons of ore per day, extract about 20 million ounces of silver per year, at a cost not over $5.00.

2009

Early 2009: Kevin McArthur founds Tahoe Resources (originally under name CKM) after retiring from his role as president at Goldcorp.

November 10 Tahoe Resources incorporated under the Business Corporations Act of British Columbia.

December: Guatemala’s Ministry of the Environment and Natural Resources (MARN) approved the Environmental Evaluation for the project.

2010

January 13: CKM changes name to Tahoe Resources Inc.

April 5: Minera San Rafael S.A. (MSR), a subsidiary of Tahoe, was legally established in Guatemala.

April 15: lawyer Jorge Asencio Aguirre registered Minera San Rafael (MSR) on the Guatemalan Commercial Registry. Aguirre was a key player in the process of transferring the mine from Goldcorp to Tahoe Resources.

April 27: Ministry of Energy and Mines authorized Resolution #095.

April 29: Ministry of Energy and Mines authorized Resolution #098, transferring license from Entre Mares to MSR.

June 8: Tahoe completed purchase of Escobal from Goldcorp. Acquiring MSR and the mining project, Goldcorp retained 40% of the shares in Tahoe. At the time, Goldcorp was still heavily involved and chose three of Tahoe’s board of directors. This arrangement lasted until 2015.

It was also in 2010 that the Committee in Defense of Life and Peace of San Rafael las Flores formed. They worked with the Madre Selva Collective to commission an analysis of the Environmental Impact Study (EIA) by independent experts, who concluded the project should not be approved. During this year, broad resistance took place in the form of of protests, sit-ins, and marches in which police, military and private security forces violently intervened.

Between 2010 and 2015, hundreds of people were criminalized, and spent days to months in jail though they were all eventually absolved.

2011

February 10: Ministry of the Environment and Natural Resources (MARN) approved the Environmental Impact Assessment (EIA) for “Tunnels for the Oasis Exploration Project.” MSR reported exploring other areas as part of  expansion plans. Construction began.

September 30: Tahoe Resources' Escobal mine had employed 365 people at this point.

October 21: MARN Approved EIA for the Escobal project.

2012

Castellanos Barquín took office, noted 280 complaints not taken into account. Otoniel Kelvin Jimenez Villalta (legal advisor to Xinka Parlaiment) filed an injunction before the First Chamber of the Court of Appeals. The judge ruled in favour, and this decision effectively suspended the license.

2013

This year, despite community resistance, Director of Mining, Fernando Castellanos Barquín, awarded the Escobal mineral extraction licence to Tahoe.

April 3: MEM announced that it had granted the mineral extraction licence for the Escobal project to MSR, and notified 280 citizens that individuals that complaints they had filed against the licence would not be processed.

April 27: During a peaceful protest outside the mine, private security for Minera San Rafael, led by Alberto Rotondo, opened fire and injured seven people. Days later the Guatemalan government declared a State of Siege to repress protestors in San Rafael and two other municipalities.

July 24: Tahoe reported that the injunction did not directly invalidate the Escobal licence and would therefore not affect their operations. They announced that the company would appeal the decision to the Constitutional Court.

2014

Disregarding the injunction, MSR reported that it had begun exporting precious metals from San Rafael Las Flores.

2015

April: percentage of Goldcorp’s shares in Tahoe got reduced to 25%.

June: Goldcorp sold all of its shares in Tahoe for approximately CAD$1 billion.

July: a decision from the Constitutional Court was still pending following their appeal.

2017

Mine suspended, at first due to peaceful encampment, then due to the Supreme Court ruling in favor of communities, in response to a lawsuit presented by the Center for Legal, Environmental and Social Action (CALAS). The supreme court found that the State had failed to consult with the Xinka Indigenous people.

2018

Guatemala’s Constitutional Court confirmed the order to consult and the suspension of the mine. The mine remains suspended, 24 hour encampments remain present, and according to the Environmental Justice Atlas, the Ministry of Mining and Energy continues to exclude Xinka from consultation processes.

Affected Stakeholders

Affected stakeholders of the Escobal mine include the people represented by the Xinka Peoples Parliament of Guatemala (Xinka Peoples Parliament, 2019) from the departments of Santa Rosa, Jalapa, and Jutiapa--where the Escobal mine and surrounding related mining projects exist. Locally led organizations, such as the Diocese Council for the Defense of Nature (CODIDENA) and the Committee in Defense of Life and Peace in San Rafael Las Flores have additionally led resistance efforts to the mine over concerns including “loss of water supplies, contamination, as well as social divisions” (Tahoe On Trial, 2017). CODIDENA was developed by local organizers to facilitate the coordination and rights awareness between members of the Committee in Defense of Life and Peace, the Madre Selva Collective, the Xinka Parliament and the Centre for Legal Environmental and Social Action (CALAS) (Solano, 2015). These communities are directly impacted by the presence of the Escobal mining project. Particularly, the Xinka have continuously expressed their concern for well-being, as reiterated in a press release from May 2019:

"the impact...is so great that our cultural, spiritual and physical survival is at risk," (Xinka Peoples Parliament, 2019, p.1).

The objective of the Xinka Peoples Parliament and those they represent is clear--the Xinka People do not want further disturbances from Pan American Silver caused by the Escobal mine (Xinka Peoples Parliament, 2019). The Escobal mine should cease operations, especially during the Court ordered consultation process. In the Xinka Peoples' press release from May 2019, it is stated that the “restart of this project is untenable, since it would mean deciding between the project and our survival” (Xinka Peoples Parliament, 2019). This statement highlights the negative stance of communities affected by and in resistance to the Escobal mine have had and will continue to hold. Furthermore, the Xinka emphasize their main objective to halt the mining operations through their statement:

"The world knows that the Escobal mining project not only lacks the social license to operate, but also endangers our survival as Xinka people," (Xinka Peoples Parliament, 2019, p. 1).

Despite the violence and intimidation in the form of kidnapping, assassinations, criminalization and destruction of livelihood and sacred places (Xinka Peoples Parliament, 2019), the Xinka have resisted the mining project resulting in the suspension of the mine. Methods have included the establishment of permanent encampments halting traffic to the mine in 2017 (Moore, 2018), marches, protests, and the assertion of rights to proper consultation (McSheffrey, 2018). This persistent, yet peaceful, ongoing resistance speaks to the power held by the Xinka People, collective action, and groups in solidarity to mineral extraction opposition.

Interested Outside Stakeholders

Mining Corporations

Pan American Silver, the Canadian owned mining company, is the most recent owner of the Escobal mine. The company claims that their vision is to be “the world’s premier silver producer, with a reputation for excellence in discovery, engineering, innovation, and sustainable development”  (Pan American Silver, n.d.). The company further claims that they seek to “generate sustainable profits,” “constantly replace and grow their reserves and resources,” “foster long-term relationships,” and “continually...improve the quality of our assets, both internally and through acquisition,” (Pan American Silver, n.d.). The Escobal mine is deemed to be one of their most promising assets according to their website. Cannon (2020) points out that in Pan American Silver’s 2018 annual report, the Escobal mine is regarded as a “world-class” mine that “could nearly double the company’s production of silver.” In this same report, there is however, no mention of the affected communities’ long-standing resistance to the mine prior to Pan American Silver’s purchase (Cannon, 2020). Based on their vision, it is clear that Pan American Silver’s objective is to operate their mines and gain monetary value through extraction. While Pan American Silver, is only but the latest to have taken over the Escobal mine, it should be noted that its Board of Directors include Kevin McArthur (founder and Executive Chair of Tahoe Resources Inc.) and Chuck Jeanes (who held various senior positions for Glamis Gold once it merged with GoldCorp) (Pan American Silver, n.d.). Both Glamis Gold and Tahoe Resources Inc. previously held the Escobal mining concession.

In response to the court ordered suspension of the mine, the involved mining companies at the time including Tahoe Resources and the Guatemalan subsidiary MSR, expressed contradictory views with regards to the communities they perceive to be impacted by the Escobal mine. When the court initially suspended the license due to lack of consultation with affected communities, Ron Clayton (president and CEO of Tahoe Resources) stated their disappointment with the ruling as “ we believe that there are no indigenous communities affected by Escobal's operations," (“Guatemalan lower court”, 2017). However later, when the court decided to reinstate the Escobal mining license, providing that MEM follow the proper consultation process as per ILO Convention 169, Clayton then stated that “we respect the rights of indigenous people in all jurisdictions in which we operate and are always willing to engage with any community members in those jurisdictions,” (“Guatemala Supreme Court”, 2017). These contradictory gestures are indicative of the lack of communication between interested stakeholders and affected communities.

Guatemalan Government

While the Guatemalan government may not be the direct culprit of the injustices related to transnational mining interests in Guatemala, such as the Escobal mine and its impact on Xinka communities, there are still connections that cause suspicion. For example, it has been noted that the new Guatemalan government, led by President Giammattei, has pledged to “restore confidence in the investment climate for transnational mining companies,” (Moore & Moore, 2020). In addition to this commitment, the ties between mining interests and the national government are suggested by the fact that Juan Jose Cabrera Alonso has been appointed as the Special Secretary to the Vice President (Moore & Moore, 2020). It should be noted that up until May 2019 Cabrera served as the General Director for Minera San Rafael (Pan American Silver’s Guatemalan subsidiary). Although he no longer holds this position, he still is the company’s legal representative and is expected to continue until May 2, 2020 (Moore & Moore, 2020).

Aside from the executive government's relationship with mining and the Escobal mine, the national bodies including the Ministry of Energy and Mines (MEM) and the Ministry of the Environment and Natural Resources also have stake in the Escobal mine. As noted by the Xinka Peoples Parliament (2019) and those they represent, these two ministries have stalled the consultation process that was ordered by the Constitutional Court in September, 2018. Their ability to do so highlights the upper hand of power that these bodies have taken to undermine the rights of Indigenous People and their right to the international standard of free, prior and informed consent (FPIC).

Solidarity Groups and Networks

Amidst the Escobal resistance led by affected communities, outside solidarity organizations have also played a role in bringing these stories to light internationally, including to Canada where the headquarters of Pan American Silver and Tahoe Resources are located. The Network in Solidarity with the People of Guatemala (NISGUA) and Earthworks are two examples of such solidarity networks that have focused on keeping up-to-date with the status of the Escobal mine. Earthworks, a nonprofit organization that seeks to protect communities and the environment, stands against the negative impacts of mineral and energy development projects (Earthworks, n.d.). The organization works by supporting communities and grassroot initiatives “to reform government policies, improve corporate practices, influence investment decisions, and encourage responsible materials sourcing and consumption,” (Earthworks, n.d.). NISGUA, similarly seeks to support and center grassroot initiatives, with the specific mission of “building beneficial grassroots ties between the people of the U.S. and Guatemala” focused on justice, while challenging “elite power structures and oppressive U.S. economic and foreign policy,” (NISGUA, 2019). In the context of Escobal mine these international solidarity groups work as a platform for providing pressure for mining companies to act in accordance with justice including the rights of Indigenous People.

Discussion

The Escobal Mine and Mining Conflict in Guatemala

Historically in Guatemala, conflict over resources has been surrounded by violence enacted by firms and by the state in order to quiet local opposition in mineral-rich terrain (Costanza, 2016). Guatemala ratified ILO 169 in 1996. This ILO convention on the Rights of Indigenous Peoples asserts that Indigenous Peoples have a right to free and prior consultation regarding initiatives that impact their communities and livelihoods (Costanza, 2016).

This mine is currently 100% owned by Pan American Silver, a Canadian Mining company based in Vancouver. The 1997 Mining Law in Guatemala was designed to encourage foreign Investment, and allowed 100% foreign ownership with decreased taxes and royalty of 1% (USAID, 2010)

After years of peaceful resistance, changing ownership between connected companies, violent suppression and assassination of Xinka people and the local community, Pan American Silver’s web page on the Escobal mine states that “Operations are currently suspended pending completion of an ILO 169 consultation process, court approval and community engagement efforts to build a social license.”

Social License to Operate (SLO)

Costanza (2016) discusses mining conflicts and the politics of obtaining a social license. A Social License to Operate (SLO) does not refer to legal requirements and has no clear definition, but is broadly described by scholars as ongoing approval and acceptance of a company’s activities by society, including relevant stakeholders and local communities. An SLO is a de facto rather than a de jure right. A paper by Solano (2015) that specifically discusses the Escobal mine brings forward a different definition. They state that an SLO is “defined by the population’s acquiescence”. In other words: accepting the project reluctantly, but without protest. They discuss how the companies that have owned and operated the Escobal mine throughout time have held advertising campaigns to counteract strong opposition, promoting a positive image of “development”, without ever fully informing the community about their plans.

Industry and State Corruption

It is important to note that the Guatemalan government and Escobal mine have close ties. The current Special Secretary to the Vice President of Guatemala, Juan José Cabrera Alonso, was the former executive of Pan American Silver’s subsidiary, MSR until May 2019. Alonso was in charge during violent actions perpetrated on the community during 2013 and 2014. Although he no longer holds authority as the General Director of this mining company, the public registry shows he is still the company’s legal representative (Moore & Moore, 2020).

There is much corruption and violence in the mining industry in Guatemala. Costanza says that it is likely that for most mining firms in Guatemala, obtaining an SLO is impossible. In the discussion of another mine in Guatemala owned by another company called Cementos Progreso, Costanza describes how use of force against a community resistance movement suggests that the state and company saw the movement as a threat, and indicates that they did not obtain an SLO. We make a similar argument for the Escobal mine and the powerful resistance of the surrounding community and the Xinka people.

Xinka Resistance and the Suspension of the Escobal Mine

In 2018, Guatemala’s Constitutional Court confirmed the order to consult and the suspension of the mine. This established that consultation should be carried out according to international standards - including consultation at all stages of the project. A press release from the Xinka Parliament of Guatemala from March 15, 2019 notes that they have been petitioning the Ministry of Environment and Natural Resources to participate in defining the area of influence. They argue that the firm cannot define the area of influence without consulting them, and therefore the current legal definition of the area of influence is “Void by Operation of Law”.

Free, Prior, and Informed consent must be just that: free, prior, and informed. Free means consent must be granted without coercion or intimidation. Prior means consultation must occur in advance of the implementation of a project. This did not occur with the Escobal mine, as noted by Xinka Parliament’s press release above. Informed means that the community must be made aware of the plans before they are implemented. Consent means the firm must respect the resulting outcome of the consultation, whether consent is granted or not. A lack of consent must be respected in the same way as consent which grants permission. If a project is not consented to, it cannot move forward.

A press release from the Xinka Parliament of Guatemala from May 8, 2019 asserts that this mine puts Xinka cultural, spiritual and physical survival at risk. They state that Pan American Silver bought the Tahoe project despite having full knowledge that this project was responsible for human rights violations, and note that the firm's actions in recent months have increased conflict in the community. It seems highly unlikely that it is possible for Pan American Silver to have a ‘fresh new start’ in taking over the mine. In an interview (MacLeod, 2019) Xinka representative Luis Fernando García Monroy stated “We see on the ground, it’s exactly the same. All the same people are still there. All the people from the subsidiary are still there.” In the May 8, 2019 press release, Xinka Parliament notes that, as FPIC states, consent must be free from coercion or intimidation. The history of violence and suppression enacted in the face of peaceful resistance makes it clear that coercion and intimidation are tactics used by firms that own and operate the Escobal mine. Additionally, they note that the Constitutional Court ruling established that the Xinka had not been properly allowed to participate in the process in granting the license.

The consultation process is currently stalled due to illegal interference by the company, by the Ministry of Energy and Mines and by the Ministry of the Environment and Natural Resources, and attempts to undermine international standards for consultation (Xinka Parliament, 2019). Xinka Parliament demanded that the company suspend all programs and publicity efforts as they threaten the current consultation process.

MacLeod (2019) details an interview with a representative of the Xinka people named Luis Fernando García Monroy who visited Victoria and Vancouver in November 2019. (Pan American Silver is a Vancouver Owned company). García relayed the message that the Xinka people want the mine shut down, and fear that the consultation process is centered around the public image of the firm rather than a proper consultation. García is just one example of many who have experienced first-hand the violence that the firm brings to the community. He was shot during a confrontation and suffered wounds to his back, face, and stomach that required surgery but have still permanently altered his ability to taste and breathe. García describes the violence, criminalization of land defenders, and assassinations surrounding mining projects in Guatemala and wants Canadians to consider whether their pensions funds are invested in these mining activities.

Escobal Mine Lacks SLO, Violates Human Rights

If there is any uncertainty about whether Pan American Silver has an SLO for the Escobal mine, it can be answered by this statement made by Xinka Parliament of Guatemala in the press release from the Xinka Parliament of Guatemala from May 8 2019: “The world knows that the Escobal mining project not only lacks the social license to operate, but also endangers our survival as Xinka people.” (Xinka Parliament, 2019, p. 1).

The company needs to understand that consultation is not an administrative stepping stone, and that consent is not guaranteed. Due to the lack of a social license to operate resulting from the lack of a consultation process in good faith and in accordance with the idea of FPIC (free, prior, and informed consent), as well as violence and assassinations surrounding this mining conflict, the Xinka have asserted their position that they do now want mining operations on their territories (Xinka Parliament 2019) and it is highly unlikely consent will be granted. Respecting consent means the company must shut down the mine and discontinue operation if consent is not granted.

Assessment of Power

The presence of Canadian mining corporations in Latin America is staggering, as together they are involved in 50-70% of mining activity in Latin America (Solano, 2015). This statistic alone shows the corporate power these mining companies hold. Many of these projects have led to violence, coercion, governmental corruption, and displacement of Indigenous communities across Latin America.  In Guatemala alone there are over 1000 land conflicts, with Xinka resistance to the Escobal mine included as one (Jones, 2012). As noted by Jones (2012) access to land for rural Indigenous populations, such as the Xinka, is increasingly challenging when the State of Guatemala continues to enable the purchasing of land by transnational corporations for industrial projects such as mining. Although the 1985 Constitution, 1996 AIDPI, and 2014 Agrarian Policy refer to communal land rights, the importance of upholding Indigenous identity through land, and the need for secure land tenure (Velasquez & Ford, n.d.; Tramel, 2019), the decade-long resistance by the Xinka to the Escobal mining concession suggests that these frameworks have relatively weak power when faced against transnational corporate interests and Guatemala’s neoliberal agenda (Robinson, 2000).

Civil society groups from North and South America launched an interactive map (here) highlighting eight Latin American mines with brief case study information for each.This map and information from the Environmental Justice Atlas is in contrast to that promoted by the Prospectors and Developers Association of Canada (website here: PDAC ), at a mining fair in Toronto, Ontario. Pan American Silver is a prominent sponsor of PDAC and touts cross-company discourse surrounding collaboration with Indigenous communities. However, much of this conversation involves how to convince local communities that mining will bring each stakeholder “mutual benefits” while ignoring the negative experiences of mining-impacted communities around the world. This position of mining fair leader gives the corporation global power economically as well as socially in present day.

As was (and is) the case with other mining projects in Latin America, MSR and the government responded to past peaceful resistance with criminalization, stigmatization, and intimidation of communities affected (Solano, 2015),  illustrating the power dynamics in favor of the State and corporate interest. Protesters were jailed, hurt and killed by Guatemala’s military and police; likewise by private Israeli and US security forces which Tahoe Resources hired. Examples include Luis Fernando Garcia, who was shot by private security of the mine (link here) and  Quelvin Jiménez Villalta, the attorney to the Xinka, who has received death threats over the phone (more info here). Despite these serious assertions, many have been disregarded due to alleged lack of evidence or false evidence and statements (Solano, 2015). Nevertheless, Solano (2015) points out that the Escobal mine has been labelled a “strategic natural resource” by the National Security Commission (CNS). As such, opposition to the mine is considered a “national security” threat (Solano, 2015). For more information regarding the militarization of the Escobal mine, see “Revelations about Tahoe Resources Quasi-military security threat” (Solano, 2015, pg.4).

In 2013, prior and post the issuing of the Escobal extraction license in 2013, eight plebiscites were held at the village of San Rafael Las Flores, promoted by the Committee in Defense of Life and Peace; each majority voted ‘NO’ each time (Solano, 2015). This discourse of opposition was met with a military siege by the central Guatemalan government, quieting further opposition (Solano, 2015). A great deal of corporate power existed when the concession was first granted, enough to ignore those votes of the affected communities. But now , with the mine being suspended with the requirement of consultation, it seems like there’s a lot of power held by the collective Indigenous rights activists with support from ILO Convention 169, backed by article 3 of the United Nations Declaration on the Rights of Indigenous Peoples stating Indigenous peoples’ right to self determination (UNDRIP, 2007).

Interact with the Environmental Justice Atlas here: https://ejatlas.org/featured/envconflictsPAS

Recommendations

Free, Prior, and Informed consent must be just that: free, prior, and informed. Free means consent must be granted without coercion or intimidation. Prior means consultation must occur in advance of the implementation of a project. Informed means that the community must be made aware of the plans before they are implemented. Presence or absence of consent is something to be respected, not ignored. This means the firm must respect the resulting outcome of the consultation, whether consent is granted or not.

USAID (2010) recommends that in order to improve tenure security for Indigenous people, the framework for governing land needs to be reviewed and adapted. Communal property rights need to be explicit. Traditional ownership systems should be supported within the law. They also recommend that the current mining law needs to be changed to include environmental and human rights protections.

Amnesty International (2014) Describes how the 1997 Mining Law necessitates that companies seeking an exploitation license must submit an EIA to MARN and involve local communities in discussion as early as possible. Amnesty notes that there is not enough guidance on the consultation process and serious cause for concern in how this law has been put into practice.

The Agreement on Identity and Rights of Indigenous Peoples (AIDPI)  was signed by Guatemalan State and the Guatemalan National Revolutionary Unity in 1996. AIDPI recognizes and upholds indigenous identity, including the rights to land, language, political systems, and the right to participate in decision making that affects their territories (Velásquez Nimatuj & Ford, n.d.).The State of Guatemala needs to incorporate this recognition into legal framework that actualizes these rights.

Our recommendations include; Traditional ownership systems need to be recognized and incorporated into law, and communal property rights need to be made explicit; the Mining Law needs to be adapted to incorporate AIDPI, and provide clear guidelines on consultation; and that in the event of the consultation process resulting in a lack of consent, this must be respected. If the Escobal mine is not consented to by the Xinka people, it cannot move forward.

References

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