Thank you to Rights Action for this news piece.
IRTF note: IRTF has been following this case and writing to authorities in Guatemala and the mining company for several years. Worth noting is the level of repression implemented by the mining company, in consort with Guatemalan security forces. In March 2018, Héctor Manuel Choc Cruz was taken by armed men to the outskirts of the El Estor community and beat him to death with rocks and other objects. His assassination in El Estor, Izabal Department, is directly related to his membership in the local Mayan Q’eqchi’ community, which for many years has been protesting displacement from their ancestral land and environmental degradation caused by the Fenix nickel mining. Sadly, it appears that the assassins were actually seeking out Hector's cousin José Ich. José Ich is a witness in the civil lawsuits against Hudbay Minerals/CGN (Compañía Guatemalteca de Níquel, or Guatemalan Nickel Company) before Canadian courts for his father’s murder on September 27, 2009, which was committed by Mynor Padilla, a former lieutenant colonel in the Guatemalan army who worked as head of security of Hudbay Minerals/CGN. José is also a witness in the criminal case against Mynor Padilla in Guatemala. In January 2021, Mynor Padilla pleaded guilty to killing Adolf Ich . See https://www.bbc.com/news/world-latin-america-55573682
Legal actions to achieve the definitive suspension of the “Fenix” mining operation in El Estor, Guatemala
El Estor, Guatemala, June 17, 2021
Solway Investment Group, a Swiss company, and the CGN (Compania Guatemalteca de Niquel), continue to operate the Fenix mine illegally, despite a suspension order. The Guatemalan state is not acting to force Solway / CGN to stop its mining operations. And while the Fenix mine continues to operate illegally, Solway / CGN and the Guatemalan state are rushing to impose a process of "community consultation" on the Q'eqchi's communities impacted by the Fenix mine, with the aim of obtaining the "approval" of the town to continue operating the mine.
Background: Starting with Skye Resources and Hudbay Minerals
Since February 2018, members of the Q'eqchi ' people , members of the Guild of Artisanal Fishermen of El Estor, initiated a legal process against the granting of the Phoenix mining license that the State de Guatemala had granted to the CGN since the CGN was owned by the Canadian companies Skye Resources (2004-2008) and Hudbay Minerals (2008-2011).
Said legal process was initiated against the Ministry of Energy and Mines in the Supreme Court of Justice. The fisherwomen questioned the absence, from the beginning, of the right to consult the indigenous peoples affected by the imposition of the mining project.
Initially, the Supreme Court of Justice denied the granting of the provisional protection requested by the members of the Union, allowing the mining project to continue operating.
Faced with said judicial refusal, the decision was appealed to the Constitutional Court, which granted the appeal in July 2019, provisionally suspending the mining operation while the processing of the amparo lasted.
Despite the decision of the Constitutional Court, the Solway / CGN company continued to operate with impunity, without the Ministry of Energy and Mines ordering the cessation of operations of the industrial plant.
KILLED: Carlos Maaz, Q'eqchi 'fisherman, killed in El Estor by the police in May 2017, during a peaceful protest against the illegal operation of Solway Investment Group / CGN.
Judgment of the Supreme Court of Justice
In January 2019, the Supreme Court of Justice issued a ruling in the first instance, granting protection to the members of the Union, ordering the development of the consultation process to the indigenous peoples of El Estor and three other municipalities in Alta Verapaz, but decided that the company could continue operating while the consultative process was being developed.
Resolution with which the members of the Union did not agree, which is why the sentence was appealed before the Constitutional Court.
Judgment of the Constitutional Court
The Constitutional Court heard the parties in a public appeal hearing on July 25, 2019. Then, on July 18, 2020, the Court issued a ruling granting the appeal filed by the Union, ordering the consultation process, leaving in Fénix mining law suspended. At the same time, the Court reduced the mining area from 247.99 square kilometers (improperly granted years ago to the Canadian companies Skye Resources and Hudbay Minerals) to 6.29 square kilometers.
This sentence is a legal precedent never seen in Guatemala. Not only was the right to consultation of Indigenous peoples protected, but the Constitutional Court warned the violation of environmental laws due to the absence of an environmental impact study of the entire extension of the original license, and reaffirmed the suspension of the Fénix mining right.
Despite the final ruling, the Solway / CGN industrial plant continued to operate - and continues to operate today, with impunity, without the Ministry of Energy and Mines issuing administrative actions to stop its operation.
KILLED: Juan Carlos Velasquez, Nahomy Lara, Angel de Leon, students from Universidad del Valle, killed by employees of the Solway Investment Group / CGN mining operation, during a visit to the mine in March 2012.
Administrative suspension of the suspension of mining rights
In February 2021, the Ministry of Energy and Mines announced the suspension of the Fénix mining rights, indicating that said suspension resolution obeyed the ruling issued by the Constitutional Court. Despite this resolution from the Ministry of Energy and Mines, the Solway / CGN industrial plant continues to operate, despite being within the limits of the suspended license.
Legal actions to achieve respect for the sentence and the suspension of operations
The Union began, a few years ago, with the development of legal actions in the present case without having financial support from any national or international organization, less small support from an NGO from Canada / USA. They only had the professional support of attorneys Rafael Maldonado and Aníbal Maquín.
Since the ruling ordering the definitive suspension of the mining operation, several actors have begun to intervene in order to support other local actors in El Estor and Izabal to strengthen the consultation process ordered by the Constitutional Court.
However, none of the actors has been interested in enforcing Guatemalan law in order to achieve the cessation of operations of the company ordered by the constitutional court.
Derived from the above, the Fishermen's Union agreed to develop even more legal actions that, as amparistas, are entitled to file in order to achieve DUE ENFORCEMENT of the judgment issued by the Court and achieve the cessation of mining operations.
In addition, it is urgent that the Ministry of Energy and Mines grant a space at the table for the pre-consultation and consultation that began this year - this in order to defend the interests of the artisanal fishing communities affected by mining activity.
Legal actions that have been agreed to initiate an administrative process before the Ministry of Energy and Mines to report on the reasons why, despite the ruling of the Constitutional Court, it allows the operations of the mining industrial plant.
Constitutional process for the due execution of the sentence before the Supreme Court of Justice to order the cessation of mining operations.
Administrative process before the Ministry of Energy and Mines to achieve a space at the pre-consultation and consultation table for the Fishermen's Union in order to defend the interests of the artisanal fishing communities affected by mining activity.
El Estor Artisanal Fishermen Association: Cristobal Pop, +502 3395-4515
Rafael Maldonado Lawyer: +502 5834-5834 / firstname.lastname@example.org
In Canada / USA
Grahame Russell, Rights Action: email@example.com