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15 Aug 2017

Elias Arriaza, Consortium Legal Guatemala

Guatemala - Oxec Case

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The Courts are seeking to harmonize the rights recognized under ILO Convention 169 with those affected due to the suspension of licenses granted to hydropower and mining projects...The Convention aims to protect the rights of indigenous peoples and, within these rights, it recognizes that the State shall consult with them whenever legislative or administrative measures are envisaged that may affect them...
Recently, the matter again became relevant in the Oxec hydropower project case, because the Supreme Court of Justice granted a provisional injunction ("amparo") during the proceedings, which was confirmed by the Constitutional Court... with which the project could no longer operate....One year after the provisional "amparo" had been granted, the Constitutional Court...decided to grant the "amparo", but with the effect of ordering the consultation...
It must be examined on sound grounds whether the person claiming the violation is part of the community or communities on which the project has an impact...There is a need to harmonize the right to consultation of indigenous peoples with the rights that are affected by a suspension of licenses...Under these premises, it seems that the resolution of the Constitutional Court to order the consultation, with consequences for those who may be responsible for not allowing it, but without suspending licenses, is a harmonizing solution.