Ratified treaty¹ 

Indigenous peoples/ Prior consultation/ Direct resolution of a dispute on the basis of international law

The claimants initiated “amparo” proceedings (a request for court protection of fundamental rights), calling on the Constitutional Court to rescind Agreement 146-2010 of the Ministry of Energy and Mining, which had granted a permit to the enterprise Corrientes del Río to construct a hydroelectric plant on their territories. The claimants deemed that the Agreement violated their rights, including the right to consultation, since it had been drafted without the prior consultation on the project required by the provisions of ILO Convention No. 169. Once the claimants had found out about the existence of the Agreement, they had organized and held a consultation whose results were not taken into account by the authorities when deciding to go ahead with the project.

The Supreme Court of Justice had dismissed the claimants’ case in the first instance, arguing that the Ministry had published the draft agreement in two national newspapers so that any party that had an objection could make it known before the definitive agreement was signed, but that none of the claimants had voiced their disagreement within that period.

In its examination of the case, the Constitutional Court indicated that "the right of peoples to be consulted" in accordance with the provisions of ILO Convention No. 169, ratified by Guatemala, was "unquestionable". The Court also indicated that “[t]he International Labour Organization has emphasized that the right enshrined in Article 6.2 of ILO Convention No. 169 should not be interpreted as authorizing indigenous and tribal peoples the right to veto.”²

The Court subsequently highlighted that legislation had not been created in Guatemala concerning the form that consultations should take, and for this reason the Court had pointed out that the opinion of the affected populations must be sought in a credible way, regardless of the process employed. The Court also indicated that both parties had been remiss, since the claimants had not lodged an objection to the draft agreement within the time period established in the publication, and the ministry had not demonstrated that they had taken the necessary means to obtain the opinion of the affected populations. The Court also pointed out that the enterprise Corrientes del Río had already made substantial investments in hydroelectric construction, and that it was therefore their duty to establish a solution that would strike a balance between the rights involved and the interests of a project in the general interest.

Consequently, the Court, making use of the provisions of ILO Convention No. 169, decided to grant amparo to the claimants without rescinding the agreement subject to the court action, with the understanding that the ministry must receive the results of the consultation the claimants had held, along with any others they might wish to hold, in order to subsequently analyse the possibility of reaching agreements with the communities on the matters considered relevant.