Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee recalls that in its previous comments it did not take into consideration the Government’s report, as it was received late, and that it is therefore examining it in the present direct request, together with the most recent report.

Article 1 of the Convention. The Committee notes that, according to the Government, harmonized criteria for statistical data were in the process of being established and a policy was being implemented to present statistics disaggregated by ethnic group and gender throughout the entire public administration. The Government considers that currently the proportion of the population covered by the Convention is about 42 per cent, which corresponds to the percentage of the population that identified itself as being indigenous in the 2002 census. The Committee requests the Government to continue to provide information on the development of criteria for identifying statistical data disaggregated by ethnic group and gender for the peoples covered by the Convention, and once again asks it whether the Convention covers non-Garífuna peoples of African extraction, with an indication of how their representation in public institutions is secured.

Articles 2, 6, 7 and 33. The Committee notes that the Advisory Council on Indigenous Peoples and Plurality (CAPIP) of the Offices of the President and Vice-President of the Republic referred to as the Indigenous Advisory Council (CAI) in the previous report, counsels and advises on public policy; that the objective of the Committee for the Inclusion of Indigenous Peoples, attached to the executive, was to include 300 representatives of indigenous peoples, but that this had been impeded by budgetary constraints, the result being the inclusion of 51 indigenous representatives in decision-making posts and 150 in posts of lesser responsibility. It notes that, according to the report, in the context of round tables for dialogue with indigenous peoples, political agreements were adopted, applying legislative provisions, to mitigate the impact of racism and discrimination, ensure the participation of indigenous peoples and respect for their rights, and promote sustained economic development and production. The Committee notes that these agreements could constitute a step forward towards participatory development, in the spirit of Article 7 of the Convention by virtue of which the indigenous peoples concerned have the right to decide their own development priorities. For this to occur, it is essential for indigenous peoples to be able to choose their representatives without any interference whatsoever and particularly that they participate through their own representative institutions as set out in Article 6. The Committee requests the Government to indicate the manner in which indigenous representation is secured in the CAPIP, the Committee for Inclusion and the round tables for dialogue, indicating particularly the manner in which representatives of indigenous peoples are designated. Please also provide information on the implementation and results achieved of the agreements adopted through the round tables.

Article 3. Non-discrimination. The Committee notes the training, awareness-raising and dissemination activities carried out by Presidential Coordinating Committee on Human Rights Policies of the Executive (COPREDEH) and Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), in particular the strategies to attract private initiatives being implemented by CODISRA. The Committee hopes that the Government will continue to provide information on such activities and strategies and on their impact in practice.

Article 4. Documentation of indigenous persons. The Committee notes that a documentation campaign for indigenous persons has been carried out, but that the Government did not have any statistics on the beneficiaries. The Committee asks the Government whether it has studies on or estimates of the number of indigenous persons still undocumented and on the measures being envisaged to resolve this matter.

Article 8. Administration of justice. The Committee notes that a theoretical framework for focusing on culturally relevant cases was being formulated for the Public Criminal Defence Institute, 120 indigenous university students were being trained to increase the number of indigenous lawyers, 100 indigenous public defenders were being trained as well as other judicial workers, and that training and awareness raising on inter-culturality was being provided to 324 Public Criminal Defence Institute employees. The Committee also took note of a number of criminal cases in which, after it had been ascertained that the accused were indigenous and indigenous law had been requested, invoking the Convention, no sanctions whatsoever had been imposed, as the compensation and reparation provided by the accused and their relatives in accordance with local customs had been considered sufficient. The Committee notes that in these cases, customs and customary law had been respected. The Committee requests the Government to continue to provide information on this matter.

Legislation respecting lands and consultation

Land Registry Information Act (RIC) and Bills. The Committee notes that, according to the report, it is not yet possible to indentify the specific beneficiary communities of the Act since the results up to now are of a general nature. The Land Information Register (RIC) has not yet finalized the registry of lands in any of the areas in which it has undertaken projects. The Government indicates that progress will be made in applying the Land Registry Information Act after adoption of the Regulation on Communal Lands, which were the subject of consultations through workshops. The Government also refers to the formulation of the Land Tenure Act and indicates that this matter is being coordinated by the Secretariat on Agrarian Affairs, which has formed a committee to work on this project. The Government indicates that this committee has produced an initial draft which will be presented and discussed with various sectors of Guatemalan society. The Committee emphasizes that consultations, pursuant to the Convention, need to be carried out according to appropriate procedures and in particular through the representative institutions of indigenous peoples, undertaken in good faith and with the objective of reaching agreement or achieving consensus, in accordance with Article 6 of the Convention. Procedures considered to be appropriate are those that generate conditions conducive to reaching an agreement or achieving consensus on the measures being proposed. There is no unique procedural model, though the circumstances of the indigenous peoples concerned as well as the nature of the measures subject to consultation need to be taken into account. With regard to the procedure to be adopted, the views of the various groups that will participate in the consultation should be taken into account so as to ensure that the procedure used is considered appropriate by all parties. The Committee asks the Government to provide information on procedures established and consultations undertaken with indigenous peoples with regard to the draft Regulation on Communal Lands and the draft Land Tenure Act. The Committee also requests the Government to provide information on the status of the land registry process, and of the indigenous communities that have benefited from it, including those who occupy or otherwise use the land.

Agrarian policy. The Committee notes that the entity that coordinates national agrarian policy is the Secretariat on Agrarian Affairs. The Committee requests the Government to provide information on the following points:

(i)    the manner in which it is determined which indigenous lands are referred to in section 45 of Act No. 24-99 respecting the land fund FONTIERRA so as to ensure that lands of indigenous communities are excluded from its scope of application; and

(ii)   the manner in which FONTIERRA applies Articles 14(1) and (2) of the Convention in certain cases involving the regularization of land tenure.

Conflicts. The Committee also notes the information provided by the Government on the number of conflicts linked with disputes over land. Moreover, in its 2007 observation, the Committee noted that in June 2007, the Governing Body had approved the report on the representation presented under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC), alleging the non-observance of certain provisions of the Convention (GB.299/6/1), in which a critical aspect mentioned by the parties was the legal situation regarding lands. The Committee notes the persistence of conflicts regarding land rights and emphasizes the importance of resolving them in conformity with Article 14 of the Convention. It recalls that, in paragraphs 46 and 60 of its report, the Governing Body requested the Government to speed up the process of the regularization of title to the lands of indigenous communities in accordance with Article 14 of the Convention and in the meantime to adopt transitional measures to protect the land rights of the peoples concerned in consultation with indigenous peoples. The Committee therefore urges the Government to adopt all the measures necessary to apply the recommendations of the Governing Body, in particular, the Committee requests the Government to provide detailed information regarding the measures taken or envisaged, in consultation with indigenous peoples, to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention and to protect these rights while the process of the regularization of title to lands is being completed.

Article 20. Recruitment and employment conditions. The Committee notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50) and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64). The Committee has examined the reports under Conventions Nos 50 and 64 in the context of the present Convention, thereby fulfilling its obligation to analyse the Government’s implementation of the above instruments. Conventions Nos 50 and 64 had been adopted in connection with indigenous workers in territories that were dependent and the Governing Body had decided that these instruments were out of date. The Committee, as had been suggested previously by the Governing Body, requests the Government to consider denouncing these Conventions when the opportunity presents itself. The Committee requests the Government to continue to provide information in its next report on the measures adopted to ensure that indigenous workers, including seasonal, temporary and migrant workers employed in agriculture, are not subject to hiring and working conditions that are exploitative and abusive. Please provide full particulars on the measures taken to ensure the effective controls by the employment agencies and the labour inspectorate.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the communication from the Indigenous and Rural Workers Trade Union Movement of Guatemala for the Defence of Workers’ Rights (MSICG), of which the following are members: the General Confederation of Workers of Guatemala (CGTG); the Single Trade Union Confederation of Guatemala (CUSG); the National Trade Union and People’s Coordinating Body (CNSP); the Committee of Rural Workers of the Altiplano (CCDA); the National Indigenous, Rural Workers and People’s Council (CNAICP); the National Front for the Defence of Public Services and Natural Resources (FNL); and the Trade Union Confederation of Guatemala (UNSITRAGUA). The communication was dated 28 August 2009, and was forwarded to the Government on 19 October 2009. The Committee will examine the communication in 2010, together with any observations of the Government in this regard. The Committee also recalls that in its previous observation it did not examine the Government’s report of 2008, as it was received late, and will therefore examine it in the present observation, together with the report of 2009.

Sacatepequez and cement company. State of emergency. In its previous observation, the Committee noted the communication from the MSICG, received on 31 August 2008. The communication referred to the award of a permit in the Sacatepequez case and the implementation of a mining project by force, despite the fact that the proposal for exploitation by mining was totally rejected by the community, with 8,936 votes against and four in favour. It added that a state of emergency was declared with a view to imposing the establishment of the cement company without consultation. The Committee notes the information provided by the Government concerning Government Decree No. 3-2008 introducing the state of prevention. However, it notes that no information has been provided on the special measures adopted, as requested by the Committee, to safeguard the persons, institutions, property, labour, cultures and environment of the peoples concerned, in accordance with Article 4 of the Convention.

With regard to the application of Articles 6, 7 and 15 of the Convention in the present case, the Committee notes the indication by the Ministry of Energy and Mining that it is impossible for it to hold consultations in accordance with the Convention due to the absence of specific regulations on this subject. It adds that, in view of the absence of such provisions, the Ministry has to comply with the Mining Act that is currently in force, which establishes a series of requirements that have to be met by the party concerned to obtain a mining permit and, once they have been fulfilled, requires the administration to grant the permit without giving it any option to do otherwise. It further notes that the Ministry urged those interested in obtaining permits to approach the indigenous communities and inform them fully concerning their projects. The Committee notes that, according to the Government’s report, a forum for dialogue was established for the Government and the representatives of the communities concerned with a view to assessing the situation.

The Committee wishes to draw the Government’s attention to the fact that the right of indigenous peoples to be consulted on each occasion that measures are envisaged which are likely to affect them directly is derived directly from the Convention, irrespective of whether or not consideration has been given to the adoption of specific national legislation. It also wishes to note that the obligation to ensure that indigenous peoples are consulted in accordance with the Convention rests with the Government, and not with private individuals or enterprises. Furthermore, the provisions of the Convention relating to consultations have to be read in conjunction with Article 7, which sets out the right of indigenous peoples to decide their own priorities for the process of development and to participate in the formulation, implementation and evaluation of plans and programmes for development which may affect them directly. In this respect, it recalls that in its 2008 general observation on the Convention, the Committee emphasized that “[d]isregard for such consultation and participation has serious repercussions for the implementation and success of specific development programmes and projects, as they are unlikely to reflect the aspirations and needs of indigenous and tribal peoples”. It also emphasizes that Article 7(3) of Convention provides that governments shall ensure that studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities, and that Article 15(2) establishes that consultations have to be held with a view to ascertaining whether and to what degree the interests of indigenous peoples would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of resources pertaining to their lands. Furthermore, in accordance with Article 7(4), governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.

The Committee therefore urges the Government to:

(i)    bring existing legislation, such as the Mining Act, into conformity with Articles 6, 7 and 15 of the Convention;

(ii)   adopt without delay all the necessary measures to hold constructive dialogue in good faith between all the parties concerned in accordance with the requirements set out in Article 6 of the Convention to seek appropriate solutions to the situation in a climate of mutual trust and respect, taking into account the Government’s obligation to safeguard the social, cultural and economic integrity of indigenous peoples in accordance with the spirit of the Convention; and

(iii) immediately suspend the alleged activities while such dialogue is being held and assess, in cooperation with the peoples concerned, the social, spiritual, cultural and environmental impact of the envisaged activities and the extent to which the interests of indigenous peoples would be prejudiced, in accordance with Articles 7 and 15 of the Convention.

Please provide detailed information on the measures adopted regarding these matters.

Articles 14 and 20. Land and wages. In its previous observation, the Committee noted that the communication referred to above indicated that the rights to lands recognized in the Convention were being violated and mentioned the following cases: Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim. It added that indigenous peoples are not recognized as the traditional occupants and that, having been employed on their own lands, their wages were not paid and they were violently removed and their ranches burned. With reference to the June 2007 report of the Governing Body (GB.299/6/1), the Committee recalled that, although the regularization of lands takes time, indigenous peoples should not be adversely affected by the duration of this process and it requested the Government to adopt transitional measures in order to protect the land rights referred to in Article 14 of the Convention and to provide detailed information on the wages due.

The Committee notes the Government’s indication that a National Policy for Integral Rural Development has been formulated which, according to the report, is intended, among other objectives, to “reform and democratize the system for the use, holding and ownership of lands”, “promote laws for the recognition of the rights of possession, ownership and allocation of lands to persons belonging to rural indigenous peoples” and “promote decent work in rural areas in general”. However, the Committee notes that information is not provided on the cases referred to previously, in which the allegations concern violations of the rights of indigenous peoples to their lands, nor is information provided on the transitional measures requested by the Committee. The Committee once again requests the Government to provide information on the transitional measures adopted to protect the land rights of indigenous peoples until progress is made in the regularization of lands. It requests the Government to provide information on the situation with regard to the Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim and to indicate the measures adopted to ensure that indigenous peoples enjoy the full benefit of the rights set out in the labour legislation, in accordance with Article 20 of the Convention. It invites the Government to provide a copy of the National Policy for Integral Rural Development and to supply information on its implementation in relation to the peoples covered by the Convention. It also refers to the additional comments on this subject contained in the direct request on the Convention.

Articles 2 and 33. Coordinated and systematic action with the participation of indigenous peoples. The Committee notes that, according to the Government, multi- and intercultural public policies, formulated by presidential committees with representation of the Maya, Garífuna and Xinca peoples, have been implemented. The Government cites as an example its public policy on living in harmony and eliminating racism and racial discrimination. The Government also refers to a Bill on sacred sites and a preliminary draft of legislation to regularize land occupancy. The Government states that progress is being made, but recognizes that there is still some way to go towards effective implementation, which involves a gradual process of establishing the appropriate bodies and mechanisms. In its previous comments, the Committee noted the creation of the State Inter-Institutional Coordination Unit on Indigenous Issues (CIIE), comprising 29 state institutions involved in indigenous issues, and the establishment in 2005 of the Indigenous Advisory Council (CAI). It also noted that, according to comments by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Confederation of Guatemalan Workers (CGTG), there was still only token participation by indigenous peoples.

The Committee recalls that in the report of June 2007 on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1), the Governing Body called on the Government to develop coordinated and systematic action, within the meaning of Articles 2 and 33 of the Convention, with the participation of indigenous peoples, when applying its provisions. The Committee also draws the Government’s attention to its 2008 general observation, in which it notes that Articles 2 and 33 provide that governments are under an obligation to develop, with the participation of indigenous and tribal peoples, coordinated and systematic action to protect the rights and to guarantee the integrity of these peoples. In this regard, the Convention calls for the establishment of agencies and other appropriate mechanisms to administer programmes, in cooperation with indigenous peoples, including all stages from the planning to the evaluation of the measures proposed in the Convention. While the Committee understands that ensuring full application of the Convention is a continuing process, it notes that the information provided does not appear to suggest that the Government’s action is either coordinated or systematic, nor does it show the existence of agencies or mechanisms that would allow indigenous peoples to participate effectively in the development and implementation of such action. The Committee therefore urges the Government, in cooperation with the peoples concerned, to take the measures and establish the mechanisms provided for in Articles 2 and 33, which should allow for coordinated and systematic action to implement the Convention, and to provide detailed information in this respect.

Legislation on consultation and participation. For several years, the Committee has been following the issue of the establishment of institutional mechanisms for consultation and participation as envisaged by the Convention. The Committee notes that in its most recent report, the Government refers to a draft General Act on the rights of indigenous peoples of Guatemala (registered as No. 40-47), which was tabled in the Plenary of the Congress on 11 August 2009 and is awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on Indigenous Peoples. Reference is also made to the Bill on the consultation of indigenous peoples (registered as No. 36-84), which was tabled in the Plenary of the Congress on 25 July 2007 and is still awaiting the opinion of the Committee on Legislation and Constitutional Matters and the Committee on the Economy and External Trade. The Committee also understands that there is another Bill on consultation, under No. 40-51, which received a favourable opinion in the Committee on Indigenous Peoples on 27 September 2009. It further notes that the Ministry of Energy and Mining refers to a third legislative initiative on the subject, under No. 34-13. The Committee also notes that, in accordance with section 26 of the Act respecting urban and rural development councils (Decree No. 11-2002), “until the Act is issued governing the consultation of indigenous peoples, the consultations with the Maya, Xinca and Garífuna peoples on development measures promoted by the executive authorities and which directly affect these peoples may be held through their representatives in the development councils”.

In its previous comments, the Committee noted that, according to the Government, the High-level Committee of the Ministry of Energy and Mines submitted a proposal to amend the Mining Act to the President of the Republic, focusing on “information, participation and consultation of the peoples concerned”. The Committee notes that, according to the Government’s report, this draft has not been transmitted to the Legislative Department, which is consequently unaware of its contents.

The Committee recalls that it has been following these matters since the ratification of the Convention; that the lack of appropriate consultation mechanisms was the subject of a report and recommendations by the Governing Body in response to a representation; that on various occasions it has examined comments by trade unions on serious situations relating to the lack of consultation and the exploitation of natural resources; and that in 2005 it noted the fact that the Office of the Human Rights Ombudsperson had expressed concern about the award by the Government, without prior consultation, of 395 exploration and exploitation permits. The Committee also refers to its 2008 general observation on the application of the Convention, in which it considered it important that governments, with the participation of indigenous and tribal peoples, as a matter of priority, establish appropriate consultation mechanisms with the representative institutions of those peoples. The Committee expresses its concern at the lack of measures to this end. In its previous comments, the Committee noted that the Bill on consultation would be finalized shortly and that a High-level Committee was working on amendments for the inclusion of prior consultation in the mining legislation. However, regrettably no progress appears to have been made concerning these initiatives. Moreover, legislative initiatives appear to have multiplied in a seemingly uncoordinated manner. While the Committee understands that measures to ensure consultation and participation take time, it emphasizes that the steps required in the short, medium and long term need to be clearly established so that the results required under the Convention can be achieved. The Committee therefore urges the Government to take all the necessary measures to ensure the establishment of appropriate machinery for consultation and participation as provided for in the Convention, taking into consideration its general observation of 2008, and to provide detailed information in this regard. The Committee reminds the Government that it can request technical assistance from the Office and asks it to provide detailed information on the measures envisaged with a view to adopting and implementing legislation on consultation and participation. Please provide information on the effect given in practice to section 26 of the Act on urban and rural development councils.

Follow-up of a communication from the Trade Union Confederation of Guatemala (UNSITRAGUA) alleging lack of consultation and participation in relation to the granting of a permit to Montana-Glamis Gold. For several years, the Committee has been following up comments from UNSITRAGUA relating to the permit for mining exploration and exploitation granted to Montana-Glamis in the departments of San Marcos and Izábal, which would extend over an area covering lakes Atitlán and Izábal. The Committee reiterated its invitation to the Government to continue making efforts to hold consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15(2) of the Convention. The Committee repeatedly invited the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7(3) of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Furthermore, the Committee invited the Government to redouble its efforts to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and has requested it to provide detailed information in this respect.

The Committee notes that the Government reiterates that no permit of any kind has been granted for Lake Izábal and that discharges of any kind into any body of water have been prohibited. The Committee notes with regret that the Government has not provided new information in this regard. The Committee recalls that, in its previous comments, it observed that the Government did not deny the alleged lack of consultation, but stated that the enterprise had undertaken an environmental impact study that was approved by the relevant government office. Furthermore, the Committee noted the concerns expressed by the Office of the Human Rights Ombudsperson in its May 2005 report on mining activity. The above Office expressly referred to the project to which the UNSITRAGUA objected and expressed its concern regarding the risks of open-cast mining, and particularly the procedure used in this case, i.e. cyanide leaching. According to the above Office, this type of procedure has had damaging effects on the environment and health in other countries and has been prohibited in other regions of the world, and its potential impact would affect: (1) water sources; (2) air quality, through the release of particles; and (3) the useful and fertile life of the soil, permeated by cyanide solutions. The Committee drew the Government’s attention to the fact that these risks should be subject to prior consultation under Article 15(2) of the Convention, as well as the studies provided for in Article 7(3) of the Convention. Consequently, the Committee, noting that the Government’s report reiterates the information provided previously, expresses its concern regarding the lack of progress in the case under examination and urges the Government to suspend the exploitation in question until the studies provided for in Article 7(3) of the Convention and the prior consultation provided for in Article 15(2) of the Convention can be carried out, and to provide detailed information in this regard. Furthermore, the Committee asks the Government to take the measures necessary to shed light on the incident in which a villager died in the course of a demonstration against the installation of a cylinder for the mine and requests it to provide detailed information in this respect.

Follow-up of the 2007 recommendations of the Governing Body. The Committee notes with regret to note that the Government’s report does not contain information on the matters raised in its 2007 observation as a follow-up to the recommendations adopted by the Governing Body in its report of June 2007. The report concerned a representation alleging a lack of prior consultation of the peoples concerned regarding the award of a permit for mining exploration for nickel and other minerals, number LEXR-902 of 13 December 2004, to the Izábal Exploration and Mining Corporation SA (EXMIBAL) to begin exploratory mining in the territory of the indigenous Maya Q’eqchi people (GB.299/6/1). The Committee urges the Government to provide detailed information in its next report on the action taken to give effect to the 2007 recommendations of the Governing Body (GB.299/6/1).

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the comments made on the application of the Convention by the Union Movement, Guatemalan Indigenous and Agricultural Workers for the Defence of the Workers’ Rights, of which the General Confederation of Workers of Guatemala (CGTG) forms a part; the Trade Union Confederation of Guatemala (CUSG); the National Trade Union and Peoples’ Coordinating Body (CNSP); the National Federation of Trade Unions of Public Employees of Guatemala (FENASTEG); the Trade Union Federation of Farm Workers (FESOC); the Trade Union of Health Workers of Guatemala; the Eastern Distribution Workers’ Union and the Trade Union Confederation of Guatemala (UNSITRAGUA). These comments were received on 31 August 2008 and forwarded to the Government on 17 September 2008. The Committee notes that the Government has not yet provided its comments on this communication. The Committee also notes that the Government’s report was received on 25 September 2008, too late to be fully examined at this session, and that the report replies to its comments of 2006, but not to those of 2007, in which the Committee requested information on the effect given to the Recommendations made by the Governing Body in its report of June 2007 (document GB.299/6/1) on the lack of prior consultation regarding exploratory mining activities and the lack of land regularization.

Sacatepequez and cement company. State of emergency. The communication refers to the award of a licence in the Sacatepequez case, in which a cement company is trying to forcibly implement a mining project, despite the fact that exploratory mining was totally rejected by the community, with 8,936 votes against and four in favour. It indicates that, due to the opposition of the indigenous peoples, the Government has declared a state of emergency and deployed armoured vehicles and 300 police officers and soldiers. They also indicate that, with regard to the same company and region, the Kaqchikel ethnic group is opposing exploitation without consultation in Los Trojes due to the major environmental impact that exploitation would have, affecting that population. The communication also indicates that, under Presidential Decree No. 3-2008, a state of emergency was declared for the second time in order to impose the establishment of a cement plant without consultation. Such measures allowed the suspension of fundamental rights such as the right of assembly and the right not to be detained without an order by a competent court. As a result, the unions considered that social protest was criminalized. The Committee notes that the issues raised relate to the imposition of a mining project, apparently without consultation, and the imposition of a state of emergency with liability on fundamental rights and guarantees. With regard to mining, the Committee considers that, in order for any exploitation of natural resources to be consistent with the Convention, the rights to participate and be consulted as laid down in Articles 6, 7 and 15 of the Convention have to be applied before decisions are taken. The Committee requests the Government to provide information on the manner in which Articles 6, 7 and 15 were applied in this case. With regard to the state of emergency, the Committee requests the Government to provide information on the reasons for that declaration, its possible connection with the indigenous conflict and the specific rights that were suspended or limited during that period. It also requests the Government to adopt special measures as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned in accordance with Article 4 of the Convention and to provide information in this regard.

Land and wages. It is indicated in the communication that the rights over lands, recognized in the Convention, are being violated and the cases of the following estates are mentioned: Finca Termal Xauch, Finca Sataña Saquimo and Finca Secacnab Guaquitim. It is also indicated that the traditional occupation of indigenous peoples is not recognized and that in addition, having been employed on their own lands, their wages were not paid and they were violently removed and their ranches burned. The trade unions further claim that, in the case of the Finca Sataña Saquimo, the indigenous villagers had purchased the land and had a public instrument to prove it, but this did not prevent their removal. The communication states that the public authorities failed to intervene even though they were fully aware of the situation. The Committee recalls that in the report of the Governing Body mentioned above, it was indicated that, although the regularization of lands takes time, indigenous peoples should not be adversely affected by the duration of this process and it requested the Government to adopt transitional measures in order to protect the land rights referred to in Article 14 of the Convention, while the regularization process is being completed. Consequently, the Committee requests the Government to take the necessary transitional protection measures concerning the lands referred to in Article 14 of the Convention and concerning the wages due, and to provide detailed information on this matter, including on the case relating to the lands for which the indigenous peoples state that they have a public instrument proving their rights.

Participation and consultation. It is indicated in the communication that, despite the comments made by the Committee in 2005, 2006 and 2007 concerning the mining exploitation of the Montana Company, the Government has continued to award mining licences without consultation and, in particular, it has not compensated the indigenous people for the damages sustained nor made efforts to reduce the impact of the exploitation. According to the communication, Article 15 of the Convention on consultation and natural resources is not applied, a land register has not been kept in order to establish when a territory is indigenous, there is no legislation on consultation with indigenous peoples, and they are discriminated against by the courts. The Committee notes that the persistence and recurrence of the matters covered by the communications indicate that in Guatemala suggest the existence of serious problems with regard to the implementation of the aforementioned Articles of the Convention, related to lands, natural resources, consultation and participation. The same matter was dealt with in document GB.299/6/1 mentioned above. The Committee is aware of the complexity of the matter but recalls that the Government must take the necessary steps towards the creation of the bodies and mechanisms provided for by the Convention, which will in turn facilitate the resolution of disputes by means of dialogue with the inclusion of indigenous peoples in plans and projects which may affect them directly. The system of consultation and participation established by the Convention with regard to natural resources is to be based on the participation of the indigenous peoples in the formulation of plans and programmes as provided for by Article 7 of the Convention. Belated consultation after the plans of the region have already been defined without the participation of the indigenous peoples would not be effective. The Committee exhorts the Government to examine the matter of natural resources from the point of view of Articles 2, 6, 7, 15 and 33 of the Convention. The Committee asks the Government to take into account, in particular, that, according to Article 7(1) of the Convention, indigenous peoples “shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly”. The Committee requests the Government to neither grant nor renew any licence for the exploration and exploitation of natural resources as referred to in Article 15 of the Convention while the participation and consultation provided for by the Convention are not being carried out, and to provide information in this regard.

Legislation. The Committee recalls that for a number of years, the Government had indicated its willingness to adopt a law on consultation. The Committee once again encourages the Government to make progress in the formulation and adoption of a law on indigenous peoples’ consultation and of appropriate regulations regarding consultations to be undertaken in the case of exploration or exploitation of natural resources (minerals, forests, water, etc.), in accordance with Article 15 of the Convention, and participation in accordance with Article 7 of the Convention; this would foster the development of appropriate mechanisms for consultation and participation, thereby attenuating disputes relating to natural resources and laying the foundations for promoting inclusive development. The Committee asks the Government to provide information on the progress made regarding the elaboration and adoption of a law on consultation.

The Committee invites the Government to provide its comments on the communication received and to reply to the present comments and the comments made by the Committee in 2007.

[The Government is asked to reply in detail to the present comments in 2009.]

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes that, in June 2007, the Governing Body adopted the report on the representation made under article 24 of the ILO Constitution by the Federation of Country and City Workers (FTCC) alleging the non-observance of certain provisions of the Convention (GB.299/6/1). The representation involved allegations of a lack of prior consultation of the people concerned regarding the award of a licence (No. LEXR-902 of 13 December 2004) to the Izábal Exploration and Mining Corporation (EXMIBAL) to begin exploratory mining for nickel and other minerals in the territory of the indigenous Maya Q’eqchi people. The other crucial aspect referred to by the parties was the legal situation with regard to the lands. The FTCC claimed that it was not coherent that, on the one hand, the Government sells the lands to the communities and, on the other hand, cedes them under licence to mining companies. The Government stated that, if the communities do not own the land, there is no obligation to engage in consultations, and submitted that it was necessary for the communities or their members to hold titles of ownership to be eligible for consultations.

2. The Committee notes the recommendations made by the Governing Body, calling on the Government to take measures and supply information for examination by the Committee of Experts on the following matters:

(a)    to give full effect to Article 15 of the Convention and to engage in prior consultation in cases of exploration or exploitation of natural resources which may prejudice indigenous and tribal communities, and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans;

(b)    to endeavour to resolve any consequences of the granting of the exploration licence including by assessing, in consultation with the communities concerned, whether and to what degree their interests have been prejudiced, and where such prejudice is found, to ensure that fair compensation is provided, in accordance with Article 15, paragraph 2, of the Convention. It hopes that, in seeking solutions to the problems affecting communities which occupy or otherwise use lands for which the licence covered by the representation has been granted, the Government should go through representative institutions or organizations so as to be able to establish and maintain a constructive dialogue under the terms of Article 6 so that the parties concerned can seek solutions to the situation faced by these communities, taking into account for this purpose paragraph 53 above;

(c)    to initiate a process of consultation before granting any exploration and exploitation licences covering the lands referred to in the representation and to maintain consultation and participation procedures with all the communities concerned which occupy or otherwise use these lands, whether or not they hold title of ownership, taking into account for this purpose paragraph 53 above;

(d)    in consultation with indigenous peoples, to take the necessary measures to guarantee the rights of ownership and possession of indigenous peoples over the lands referred to in Article 14 of the Convention;

(e)    in consultation with indigenous peoples, to adopt transitional measures to protect these rights while the process of the regularization of title to lands is being completed;

(f)    to develop coordinated and systematic action, within the meaning of Articles 2 and 33, with the participation of indigenous peoples, when applying the provisions of the Convention;

(g)    to make progress in the formulation and adoption of the Indigenous Peoples Consultation Bill and the appropriate regulation of consultations to be undertaken in the case of exploration or exploitation of natural resources (minerals, forests, water, etc.), in accordance with Article 15 of the Convention; this would foster the development of appropriate mechanisms for consultation and participation, thereby attenuating disputes relating to natural resources and laying the foundations for promoting processes of inclusive development.

3. The Governing Body also invited “the Office to pursue its technical assistance and cooperation with the Government so as to facilitate the establishment of the process of consultation envisaged in points (a), (b) and (c) above and to assist the Government in the formulation of the legislation referred to in point (g) above”.

4. The Committee requests the Government to supply detailed information in its next report on the action taken further to the abovementioned recommendations, together with its reply to the comments made by the Committee in 2006.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Article 1 of the Convention. The Committee notes that according to the Government, no state bodies or indigenous organizations have statistical information indicating the population covered by the Convention, as no distinction is made as to ethnic group in implementing public policies. The Government also indicates that it has not reached consensus with any indigenous organizations or institutions on the criteria for determining membership of an ethnic group. The Committee points out that since the Convention provides for the implementation of a series of public policies targeting indigenous peoples exclusively, it is important to set criteria for determining its coverage. The Committee hopes that the Government will do its utmost, in consultation with the peoples concerned, to establish criteria for identifying peoples liable to be covered by the Convention, bearing in mind that paragraph 2 of this Article establishes that self-identification must be regarded as a fundamental criterion. Please report to the Committee on progress made in this regard, and specify whether the Convention applies to non-Garífuna peoples of African extraction indicating, if appropriate, how the latter’s representation in Government institutions is secured.

2. Articles 2 and 33. The Committee notes that the Indigenous Advisory Council (CAI) has had great difficulty in starting up because the Government decision (No. 96-2005) which established it made no provision for funding. However, it has created a political environment allowing the presidency to become acquainted with the most relevant indigenous issues, due in particular to government mobile units, at which the indigenous organizations can hand in their requests, proposals and recommendations. The Committee notes that in 2006 a Committee for the Inclusion of Indigenous Peoples, attached to the executive, was set up for the purpose of negotiating/implementing 300 decision-making posts to be filled by representatives of indigenous peoples, and that the President proposed launching a “National Agreement for implementation of social expenditure for poverty reduction”, the aim being to reach short- and medium-term operational agreements on indigenous peoples and inclusion among other subjects, a “steering committee on indigenous peoples and inclusion” having being officially set up to implement the agreements. The Committee points out that according to Article 6(1)(c), in applying the Convention, governments must establish means for the full development of indigenous peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. It accordingly hopes that the Government will take the necessary steps to secure funding to overcome the abovementioned difficulties. It also requests the Government to report on the powers, operation, membership and representation machinery of the CAI, and hopes that the Government will continue to provide information on its activities and their effect in practice, and on progress towards achieving the objectives of the abovementioned committee and steering committee.

3. Article 3. Non-discrimination. The Committee notes the training, information and advocacy measures undertaken by the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA), particularly the latter’s strategies for the involvement of private initiative. The Committee hopes that the Government will continue to keep it informed in this regard, indicating the effect of the above measures in practice.

4. Article 4. Further to its previous comments concerning the issuing of documents for undocumented indigenous people, the Committee notes with interest that on 4 April 2006 the Congress of the Republic approved Decree No. 09-2006, the Temporary Act on Personal Documents. Please provide information on the latter’s effect in practice indicating, for example, the number of indigenous people who have obtained documents since its entry into force.

5. Administration of Justice. The Committee notes with interest the various measures adopted to apply the relevant provisions of the Convention. It notes in particular that the Strategic Plan of the Institute of the Ombudsperson for Criminal Affairs for the period 2005-09 provides for an “ethnic or intercultural focus” in all aspects of the provision of “a single technical protection service”. It also notes the efforts made to institutionalize machinery for coordinating official state law and the law practised by the traditional authorities of indigenous peoples, and to support the provision of cultural expert opinions in cases where this is warranted. The Committee would be grateful if the Government would continue to provide full information on the progress made and difficulties encountered in applying the relevant provisions of the Convention, particularly in relation to the issues mentioned above. Please also provide, where possible, samples of court decisions reflecting such progress.

Lands

6. Act on land registry information. The Committee notes that according to the Government, “it can be said” that the indigenous peoples were consulted on the Act, since the Joint Committee on the Land-Related Rights of Indigenous Peoples (COPART) participated actively in the drafting and debate stage, and while the Governing Board of the Land Information Register (RIC) has no indigenous representatives, it is in continuous contact with indigenous and peasant organizations in connection with applications that they file and through land registration activities. The Committee also notes that the provisions of the Act, particularly section 73, which establishes that Title VII “Regularization under the land registration process” will apply until the entry into force of the “Land Tenure Act” and that for this purpose, the executive body shall submit the corresponding initiatives to the Congress of the Republic at the earliest possible date. It also notes that the temporary provisions of the abovementioned Act establish machinery for determining and registering communal lands (section 65) and indigenous ceremonial sites (section 66) and that it defines communal lands as lands under the ownership, possession or tenure of indigenous or peasant communities as collective bodies with or without legal personality (section 23(y)) including those registered in the name of the State and municipalities. The Committee reminds the Government that the prior consultations required by Article 6 of the Convention, must be carried out by means of appropriate procedures and in particular through the peoples’ representative institutions whenever consideration is being given to legislative or administrative measures which may affect the peoples directly. It accordingly asks the Government to provide information on the manner in which the abovementioned consultations were carried out. Please also provide information on progress in applying the Act, citing specific cases of indigenous communities that have benefited from it. The Committee would also be grateful for information on the measures adopted or envisaged to regularize the situation of indigenous villagers or communities who occupy or use in any other manner lands located on State reservations, protected areas or private property, and on progress made in the preparation of the Land Tenure Act, in consultation with the indigenous peoples.

7. Agrarian policy. The Committee notes from the Government’s information that there is no body responsible for coordinating national agrarian policy and that the Land Fund (FONTIERRA) is governed by Internal Act No. 24‑99, section 45 of which excludes the lands of indigenous communities from the scope of the Act. However, according to a report by FONTIERRA, attached to the Government’s report, FONTIERRA applies Article 14, paragraphs 1 and 2, of the Convention in keeping with the Regulations on Regularization of the Tenure of Lands Delivered by the State, Government Decision No. 386-2001, in certain cases involving the legalization of land tenure (section 8). Please explain the position in law of indigenous community lands legalized under the above mechanism, specifying the conditions under which the awards referred to in the Regulations are made. The Committee notes the general results obtained through the application of the above Regulations in terms of the number of families and communities that have benefited, and asks the Government to give specific information on the different indigenous communities that have benefited from these measures..

8. Disputes. In its previous comments the Committee noted that the Presidential Dispute Settlement Unit (UPRECO) had in recent years intervened in disputes over lands and water. It also noted that the Secretariat for Agrarian Affairs of the Presidency of the Republic (CONTIERRA) was monitoring 2,000 land disputes, which were classified in four categories: occupation, disputes of law, extraterritorial boundary disputes and land regularization cases. The Committee would be grateful if the Government would state whether the abovementioned disputes and cases include any claims by indigenous communities and, if so, indicate the manner in which they are processed.

9. Article 20. Recruitment and conditions of employment. The Committee notes the statistical data of Guatemalan temporary migrant workers. It notes that according to the Government, these workers cannot be disaggregated by ethnic group, but that most of them belong to indigenous peoples. The Government also indicates that there are no illegal Guatemalan seasonal workers. In its previous comments, the Committee noted the measures adopted by the Department of Labour Migration of the Ministry of Labour to ensure that the provisions of the Convention are applied to seasonal indigenous workers in the south of Mexico who are hired unlawfully. The Committee would be grateful if the Government would provide information on developments in this situation and on the main problems in applying this Article to indigenous workers in Guatemala.

10. Articles 24 and 25 (social security and health). The Committee notes the information supplied by the Government concerning points 12 and 13 of the previous direct request, and will continue to monitor compliance with these provisions of the Convention through the information supplied by the Government in its future reports. In particular, it requests the Government to provide the results of the measures taken to target the problem of child malnutrition.

11. Articles 26 to 31 (education and the media). The Committee trusts that the Government will provide information on the application of these Articles in its next report.

12. Part VIII of the report form. The Committee reminds the Government once again that this part of the report form approved by the Governing Body states that “although such action is not required, the Government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application”. The Committee would be grateful if the Government would state whether it plans to carry out consultations of this kind.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. In its observation of 2005, the Committee referred to a report of the Council of Mayan Organizations of Guatemala (COMG) sent by the General Central Union of Guatemalan Workers (CGTG) concerning consultation and participation, and to a communication from the Union of Guatemalan Workers (UNSITRAGUA) alleging that the peoples concerned had not been consulted regarding the granting of a licence to Montana-Glamis Gold. The Committee examined the above communications together with the Government’s reply and requested information to be sent in 2006.

2. Consultation and participation. In its previous observation, the Committee noted that according to the COMG, there was still only token participation of indigenous peoples, there were no specific institutional mechanisms for carrying out consultations, and a large number of licences for exploration and exploitation of mineral resources had been granted without prior consultation with the indigenous peoples. It also noted that according to the Government, in March 2005, the Indigenous Advisory Council (CAI) was set up and that although there was no consultation machinery, an important item on the agenda of the Joint Committee for Reform and Participation is the framing of an “Indigenous Peoples Consultation Bill”. The Committee notes that the report again states that the Bill will shortly become law.

Article 15, paragraph 2. Communication from UNSITRAGUA
alleging that the peoples concerned were not consulted
to ascertain whether and to what extent their interests
would be harmed by the granting of a licence to
Montana-Glamis Gold

3. Background. In 2005, the Committee noted that according to UNSITRAGUA, the Government had granted Montana-Glamis Gold a licence for mining exploration and exploitation in the departments of San Marcos and Izábal in an area containing two of Guatemala’s main lakes – Atitlán and Izábal – where there are eco-tourism resorts. When the company’s cylinder was brought in on 11 January 2005, under the escort of 1,300 members of the police and the army, the local population blocked the road in protest. A villager died as a result of these incidents.

4. It also noted that according to the Government, environmental impact studies had been carried out, that the licence was granted in San Marcos but not in Izábal, and that UNSITRAGUA’s communication gave no explanation of how Lake Atitlán and Lake Izábal were damaged. The Government recognized that there is no institutional machinery for consultation of indigenous peoples but indicated that approaches had been made to the indigenous population, that a high-level committee had been set up whose members included representatives of the Executive and the Catholic Church, and that an understanding had been signed seeking amendment of the Mining Act with regard to royalties, environmental health and consultation with indigenous peoples.

5. The Committee notes from the Government’s report that it is the understanding of the Ministry of Energy and Mines that the consultations provided for in Article 15 of the Convention apply only where the prospecting and exploitation is located within the lands of the indigenous peoples. The Committee reminds the Government that this Article provides for consultations when the natural resources are in the indigenous lands defined in Article 13, paragraph 2, which states that “the use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”. The Committee also points out that the Convention covers not only areas occupied by indigenous peoples but also “the process of development as it effects their lives … and the lands they occupy or otherwise use” (Article 7, paragraph 1). Accordingly, a project for exploration or exploitation in the immediate vicinity of lands occupied or otherwise used by indigenous peoples, or which directly affects the interests of such peoples, would fall within the scope of the Convention.

6. The Committee notes the Government’s statement that until the Bill on the participation and consultation of indigenous peoples is adopted, the transitional consultation machinery will apply which is regulated by the ordinary law including section 76 of the Urban Development Councils Act, Decree No. 11‑2001, which provides that consultation of the Maya, Xinca and Garífuna peoples may be carried out through their representatives in these councils. The Committee notes the Government’s explanation that in practice, meetings have been held with the development councils at which detailed explanations have been given regarding mining applications and the reasons for considering that the activities involved will not affect the interests of the peoples represented by the councils, and that any damage sustained by the communities is covered by the surety that the enterprises are required to deposit.

7. While noting the Government’s efforts to establish machinery for the consultation and participation of peoples who may be affected by mining projects, the Committee again asks the Government to pursue its endeavours to hold consultations with the peoples concerned, taking into account the procedures required by Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as prescribed in Article 15, paragraph 2, of the Convention. The Committee again asks the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis Gold, it will be possible to carry out the studies provided for in Article 7 of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. The Committee also invites the Government to redouble its efforts to shed light on the incidents in which a villager died in the course of a demonstration against the installation of a cylinder for the mine. The Committee would be grateful if in its next report, the Government would provide detailed information on these points.

8. Amendment of the Mining Act. The Committee notes that the High-level Committee of the Ministry of Energy and Mines recently submitted to the President of the Republic a draft amendment to the Mining Act which focuses among other matters on “information, participation and consultation of the peoples concerned”. The Committee trusts that this amendment will give effect in law to the prior consultations required pursuant to Article 15, paragraph 2, of the Convention, and will take into account the above comments on the provisions of Articles 6, 7 and 13. Please keep the Committee informed on progress made in amending the Mining Act.

9. The Committee notes that according to the Government, Guatemala is to have technical assistance from the Office with a view to developing a model for consultation that conforms to the Convention. In view of the abovementioned Indigenous Peoples Consultation Bill and the amendment of the Mining Act to include consultation, the Committee encourages the Government to pursue its efforts to obtain suitable instruments for consultation and participation which will attenuate disputes over natural resources and lay the foundations for inclusive development projects. It requests the Government to report on progress made and expected regarding these important issues. The Committee notes with interest that a seminar on the Convention was held in November 2006 with the assistance of the ILO and hopes that this assistance will continue, and will facilitate the creation of an appropriate basis for the effective application of the Convention.

Articles 2 and 33. Coordinated and systematic action
with the participation of indigenous peoples

10. Finally, the Committee points out that Articles 2 and 33 of the Convention provide for coordinated and systematic action with the participation of indigenous peoples in applying the provisions of the Convention, and that Article 33, paragraph 2, provides for such participation from the conception through to the evaluation stage of the measures provided for in the Convention. Consultation, as envisaged in the Convention, extends beyond consultation on specific cases: it means that application of the provisions of the Convention must be systematic and coordinated and undertaken in cooperation with the indigenous peoples as part of a gradual process in which suitable bodies and machinery are established for the purpose. The Committee notes in this connection that a coordinating body has been set up, the Coordinadora Interinstitucional Indigena del Estado (CIIE), comprising 29 state institutions involved in indigenous issues and that its purpose is to coordinate and advise on public policy relating to indigenous peoples. The Committee urges the Government, in cooperation with the peoples concerned, to move forward with the implementation of these Articles, and asks it to provide information on the measures adopted to this end.

The Committee is also addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

1. Article 1 of the Convention. The Committee notes from the Government’s report that according to the census of the Maya and rural population, 39 per cent of the total population identifies itself as Mayan. Please state the total population covered by the Convention in Guatemala, bearing in mind that according to the information supplied by the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA) (Annex 5 of the report), "indigenous people currently account for more than half the total population of Guatemala, i.e. some 6 million inhabitants" and include, according to the Agreement on the Identity and Rights of Indigenous Peoples, Mayas, Garifuna and non-Garifuna peoples of African ascendancy and Xinkas.

2. Articles 2 and 33. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was set up to enable the Government to receive advice from leaders of ethnic groups. Please provide information on the activities carried out by the CAI and their impact during the period covered by the next report. The Committee also notes the information on the activities of CODISRA and the Guatemalan Indigenous Fund (FONDIGUA). The Committee would be grateful if the Government would state whether there is a governing body whose duties include monitoring the general application of the Convention or some mechanism for coordinating the various bodies involved. Please indicate the measures to ensure that programmes are coordinated, with the participation of the indigenous peoples, at all stages, from planning through to evaluation, in accordance with Article 2, paragraph 1, and Article 33, paragraph 2(a) and (b), of the Convention.

3. Article 3. Non-discrimination. The Committee notes the activities of the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and CODISRA’s Strategic Plan for 2005-25. It notes that according to the Plan, "although the indigenous population makes up most of the country, they are not treated favourably by state policy and state action; on the contrary, they are the object of racial discrimination owing to relations which date back to the colonial production system and which have been reproduced ever since in all state institutions". The Committee appreciates the Government’s willingness to recognize the problem, since an objective evaluation will allow suitable polices and programmes to be devised in order to overcome discrimination. It notes in this connection the yearly action plans and the plan for 2005-10 and requests the Government to provide information on the implementation and impact of the plans, particularly Action Plan 1 on public policy monitoring and one of its component projects "Private enterprise in Guatemala enhances its social responsibility for a productive country free of discrimination and racism".

4. Article 4. With reference to its previous comment concerning the issuing of documents for undocumented indigenous people, the Committee notes that consultancy was provided in only four cases but that the Ombudsperson for Indigenous Women (DEMI) showed interest in reviving the temporary law on personal documents. Please continue to provide information on the number of indigenous people issued with personal documents during the period covered by the next report.

5. Article 6. The Committee refers to its observation and notes that the information on the First National Mining Forum does not mention the concluding observations of the 11 promoters or the ten main conclusions referred to by the Government in its report. Please provide information on the content of the reflections and conclusions and on their follow-up. The Committee refers the Government to the comments made in its observation about the Government’s request to the Office for technical assistance to establish a legal framework for consultation, and hopes that with the Office’s technical assistance and in consultation with the indigenous peoples, the Government will make headway in passing legislation that gives effect to this Article of the Convention and will be in a position to provide information in this regard in its next report.

6. Article 7. Participation. The Committee notes all the information sent by the Government and refers to its observation. It notes with interest Ministerial Agreement No. 402-2004 of the Ministry of Environment and Natural Resources setting up the Maya, Garifuna and Xinca Peoples Unit for Environment and Natural Resources, the Preamble of which refers to Articles 4, 7 and 15 of the Convention. It notes that article 5(g) of the abovementioned Agreement establishes that the Unit’s duties include "promoting and facilitating the organization, participation and effective consultation of indigenous peoples in the sustainable management and use of the environment and natural resources" and that article 5(l) assigns the Unit the duty of "issuing an opinion on issues relating to the Maya, Garifuna and Xinca peoples in the area of environment and natural resources". Please provide detailed information on the activities carried out by the Unit pursuant to articles (g) and (l) above.

7. Justice system. The Committee notes with interest the various measures taken to apply the relevant provisions of the Convention. It notes the copy of the publication containing 24 cases of judicial decisions taken on the basis of indigenous law in compliance with the Convention. It also notes that the Public Criminal Defence Institute has set up a body, the "Indigenous Ombudsmen Project of the Public Criminal Defence Institute", which so far has ten regional offices, and that in its pursuit of the objectives of the Convention, the abovementioned Institute is promoting judicial pluralism in Guatemala by endeavouring to achieve adequate coordination between the indigenous legal system and the predominant legal system. It also notes that there has been training (with award of diplomas) on the Convention for professionals of the justice system (judges, prosecutors, ombudspersons) in collaboration with the United Nations Development Programme and that in eight departments the Supreme Court of Justice promoted a course (with diploma) on "Indigenous law and application of ILO Convention No. 169 under the judicial legislation in force". In the Committee’s view, the Government’s efforts in the area of justice deserve highlighting as they contribute to combating discrimination and serve as an example of good practice for other countries. The Committee would be grateful if the Government would continue to provide full information on the progress made and the difficulties encountered in applying the relevant provisions of the Convention.

8. Land. The Committee notes the activities of the Land Fund (FONTIERRA), an institution responsible for defining and executing public policy on land access. It also notes that the Agrarian Affairs Secretariat of the Office of the President of the Republic (CONTIERRA) is to set up an agrarian tribunal and train the judges. This institution is currently following up 2,000 land disputes, classified into four groups: occupation, law disputes, disputes regarding extraterritorial limits and cases of land regularization. Another important measure is the Act on land registry information (Decree No. 41-2005), one of the instruments envisaged in the Peace Accords to resolve land ownership problems and provide certainty in law. The above Act provides for the creation of the RIC - a record of information pertaining to land registration which serves to update the National Land Register and formulate policy in this area. The Committee requests the Government to state whether the indigenous peoples were consulted about the above Act and whether they consider that it takes into account their land access problems. It notes from the information supplied in the Government’s report that there appear to be no indigenous representatives on the RIC Governing Board, and suggests that, in view of the register’s importance in settling land disputes, the Government examine the manner in which representatives of indigenous peoples might participate in the Board. The Government is asked to keep the Committee informed on this matter. Please also indicate how indigenous peoples who have no land title but can show traditional occupation can assert these rights, and how the RIC deals with this situation.

9. With regard to its previous direct request on the activities of the Presidential Conflict Resolution Unit (UPRECO), the Committee notes that UPRECO has intervened in a number of areas in recent years, twice in connection with land and water. It also notes the information on the Joint Committee on the Land Rights of Indigenous Peoples (COPART). It would be grateful if the Government would indicate how it ensures coordination of the activities carried out by FONTIERRA, CONTIERRA, RIC, UPRECO, COPART and any other body involved in land issues pursuant to Articles 13 and 14 of the Convention. It would also be grateful if the Government would indicate briefly which provisions give effect to Articles 13 and 14 of the Convention, particularly as regards the identification of lands occupied traditionally and adequate procedures (Article 14(2) and (3) of the Convention, respectively) and how the Convention is applied in practice. Please also provide an assessment of results, progress and difficulties.

10. Article 20. Recruitment and conditions of employment. The Committee notes that, by means of orders, protective measures and registration, the Ministry of Labour’s Department of Labour Migration is taking steps to ensure that the provisions of the Convention are applied to seasonal and indigenous workers in southern Mexico who face problems of irregular recruitment. The special protective measures taken in the area of recruitment and conditions of employment include: (1) identification of recruiters: up-to-date lists are kept and submitted to authorities involved, such as Guatemalan migration delegations and Guatemalan consulates at the border before being submitted to the Guatemala-Mexico bilateral meeting of the Ad Hoc Group on Guatemalan migrant workers; (2) dialogue with Mexican employers: a meeting was held with members of the Regional Agricultural Union of Tacaná Coffee Producers, at which Mexican employers stated their wish to recruit directly in Guatemala and the Ministry of Labour stated that these workers must be registered at local border offices. Another meeting was planned in July 2005, to include mango, banana and other producers as well as coffee growers; (3) improved regularization: three different forms were introduced for (1) workers, (2) women and young migrants and (3) children accompanying their parents. The Committee notes with interest the detailed information sent by the Government and asks it to continue to provide information on developments in the situation, including figures giving an estimate of the number of Guatemalan indigenous workers in Mexico and the number of them whose status is legal. The Committee notes the programmes run by the Social Investment Fund and various state bodies. It also notes that progress has been made in placing labour inspection and indigenous language activities on a regional basis. Please provide information on the main problems encountered in applying this Article to indigenous workers in Guatemala.

11. Articles 21 to 23. Vocational training. The Committee notes that on 12 February 2004 the Government signed with the International Labour Office a letter of understanding concerning the project "Education for work, employment and rights of indigenous peoples" (ETEDPI). It notes that under the above letter of understanding, work was undertaken with communities in which there are integrated projects covering both tourism and the conservation of community resources. It also notes the progress made in the area of community tourism. Please continue to provide information on the results of this and any other projects carried out pursuant to these Articles of the Convention.

12. Social security and health. The Committee notes from the Government’s report that the Guatemalan Social Security Institute is based on Article 100 of the Constitution which lays down social security as a right for anyone, without distinction as to race, belief or economic status, who works for an employer that is officially registered with a social security regime. The Committee also notes that according to the World Bank report Indigenous peoples, poverty and human development in Latin America: 1994-2004, in Guatemala health coverage for the non-indigenous population is 18 per cent, and 5 per cent for the indigenous population. According to the Government, the Ministry of Public Health’s policy focuses on decentralizing the health service network so as to provide care through simple methods using municipal associations and health promoters. Please indicate any measures taken - and the results obtained - to extend the health coverage of the members of indigenous groups, bearing in mind that Article 25, paragraph 4, of the Convention requires the provision of health services to be coordinated with other social, economic and cultural measures in the country.

13. The Committee also notes from the above report that the prevalence of malnutrition among Latin America’s indigenous people is one of the core factors underpinning poor human development outcomes and that in Guatemala the rate of stunting among indigenous children is 58 per cent, higher than either Yemen or Bangladesh, and almost twice the rate for non-indigenous children. Considering the urgency of the matter, please indicate the measures taken, with participation by indigenous peoples, to remedy this situation.

14. The Committee also takes note of a report by the Prosecutor’s Office for Human Rights entitled "Mining and Human Rights". The Committee is concerned at the assessment in the report of the consequences for water, the environment, and the population of the prospecting carried out by the Montana-Glamis company and the use of cyanide in open cast mining. The Committee requests the Government to carry out the necessary studies, with the participation of the indigenous peoples concerned, to guarantee the health of these peoples and a healthy environment.

15. Education. The above World Bank report indicates that Guatemala has the lowest absolute levels of indigenous education, averaging just 2.5 years of schooling at the close of the decade, whereas the average for the non-indigenous population in Guatemala is 5.7 years. The report points out that well-designed, implemented and rigorously evaluated programmes can nevertheless produce significant returns. It cites, as an example, students of bilingual schools in Guatemala’s national bilingual programme, who have higher attendance and promotion rates, and lower repetition and drop-out rates. Bilingual students also attain higher scores on all subject matters, including command of Spanish. The Committee also notes from the Government’s information that in 2004, literacy was undertaken in 17 Mayan languages and that from 1997 to the present date, 200,000 persons from different ethnic groups were made literate. It also notes the Government’s endeavour to develop bilingual education, and requests it to pursue its efforts to improve education in terms both of quality and of the number of years’ schooling, in order to reduce the education gap between indigenous and non-indigenous people. Please continue to provide information on this matter.

16. Article 32. Please provide information on any international agreements concluded to facilitate contacts between indigenous and tribal peoples across borders, particularly with Mexico.

17. Part VIII of the report form. The Committee is of the view that the Convention is essentially an instrument for promoting dialogue and participation, and reminds the Government that this part of the report form, approved by the Governing Body, states that "although such action is not required, the government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application". The Committee would be grateful if the Government would state whether such consultation is envisaged.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

1. The Committee takes note of the Government’s detailed report and the attachments thereto. It also notes: (1) the third report on compliance with the Convention in Guatemala, produced by the Council of Mayan Organizations of Guatemala (COMG), sent by the General Central Union of Guatemalan Workers (CGTG) on 2 November 2005; (2) general comments by the Government on the COMG’s communication received on 31 March 2005; (3) a communication of 21 January 2005 from the Union of Guatemalan Workers (UNSITRAGUA); and (4) the Government’s comments on the latter, received on 11 November 2005.

2. The Committee notes with interest that on 30 September 2005 a Guatemalan delegation, which was headed by the Vice-President of the Republic and included Rigoberta Menchu, winner of the Nobel Peace Prize, came to ILO headquarters in Geneva and made a request for technical assistance from the Office in connection with Convention No. 169 in relation to a number of disputes that have arisen regarding indigenous matters. The Government says that it is anxious to overcome the systematic exclusion of indigenous peoples from decision-making regarding policy and to find solutions to disputes (usually about land) and to establish better machinery for consultation.

3. The Committee also notes that in November 2005 the Governing Body declared receivable a representation submitted by the Federation of Rural and Urban Workers under article 24 of the ILO Constitution alleging non-compliance by the Government with some provisions of the Convention.

Articles 6 and 7 of the Convention. Consultation and participation

4. The Committee takes note of the information in the above third report by the COMG. According to the report, indigenous peoples constitute the largest population in Guatemala and the main workforce and that their rights need to be fully recognized. Efforts are made sporadically towards providing an institutional basis for participation of indigenous peoples; a number of judicial decisions and other measures give effect to the Convention, but the COMG  emphasizes that there is no coherent policy on institutions that combines political, administrative and financial measures to attain the objectives of the Convention. The report indicates that participation continues to be symbolic and the political and electoral system remains an instrument of exclusion. The report indicates that there is no specific institutional machinery for consultation and that, during the previous administration, 31 concessions were granted for the exploitation of mineral resources and 135 for exploration, with no prior consultation with the indigenous peoples as to the viability of such activities or their environmental impact. These activities are still ongoing and there are no programmes to curtail the impact of the prospecting and exploitation or to compensate communities which may be adversely affected.

5. In its comments on the above report, the Government indicates that indigenous participation is being strengthened, and that the last few months of 2004 saw the establishment of a preparatory body of the Advisory Council on Indigenous Peoples and Pluri- and Inter-culturalism the task of which is to set up a Standing Advisory Council to advise the Government on public policy governing indigenous matters. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was established. According to the Government, indigenous participation in political parties is a slow process but headway is being made, though it must be acknowledged that the parties need to revise their objectives and enhance participation and that the indigenous peoples ought to make more substantive proposals rather than formal ones. The Government acknowledges that there are no consultation mechanisms and that one of the main items on the agenda of the Joint Committee on Reform and Participation is the drafting of a "Bill on the consultation of indigenous peoples".

6. The Committee observes that since 1998 it has been requesting information on the consultation machinery set up pursuant to the Convention. It draws the Government’s attention to the fact that the provisions on consultation, particularly Article 6, are the core provisions of the Convention and the basis for applying all the others. Consultation is the instrument that the Convention prescribes as an institutional basis for dialogue, with a view to ensuring inclusive development processes and preventing and settling disputes. The aim of consultation as prescribed by the Convention is to reconcile often conflicting interests by means of suitable procedures. The Committee notes with interest that the Government has given this situation attention by seeking technical assistance from the Office in order to give effect to the Convention’s provisions on consultation. It invites the Government to continue along this path and hopes that next year it will be in a position to provide information on the legislative and practical measures taken to give effect to this key aspect of the Convention.

Article 15, paragraph 2. Communication from UNSITRAGUA
alleging failure to consult the peoples concerned to ascertain
whether and to what degree their interests would be prejudiced
by the granting of permits  to Montana-Glamis Gold

7. The Committee notes that, according to UNSITRAGUA, the Government recently granted a permit for mining prospection and exploitation in the departments of San Marcos and Izábal to Montana Exploradora S.A., a subsidiary of the Canadian mining company Glamis Gold. UNSITRAGUA indicates that the area involved contains two of Guatemala’s main lakes - Atitlan and Izábal - where there are eco-tourism resorts. Mining operations, which would require 250,000 litres of water per hour, would place the potable water supply under serious risk of pollution. Furthermore, despite opposition to the mining activities by the population of Sololá and San Marcos, in an act of intimidation the Government allowed the company’s equipment to be brought in under the escort of 1,300 members of the police and the army. This operation began on 11 January 2005. The local population staged public protests and blocked the road. According to UNSITRAGUA, the Government stated that the people were armed, although no weapons were seized. However, one villager died and many others were injured.

8. UNSITRAGUA emphasizes that the death is the consequence of a mining policy imposed - without prior consultation - on the premise that corporate interests rank higher than social interests and respect for the land, culture, beliefs and opinions of the indigenous peoples of Guatemala and even their lives. The Committee asks the Government to provide information on what occurred, indicating whether the persons responsible have been identified, tried and punished.

9. In its response, the Government indicates that Guatemalan legislation requires environmental impact studies to be carried out and submitted before any type of prospecting or exploitation permits are granted. The requisite studies were submitted by the Directorate General for Management of the Environment and Natural Resources of the Ministry for the Environment and Natural Resources which approved by resolution No. 779-2003/CRMM/EM the study submitted by Montana Exploradora. The permit was granted in the Department of San Marcos, but not in Izabál, and UNSITRAGUA’s communication fails to explain how the damage to lakes Atitlan and Izabál was caused. The Government concedes that there is no institutional machinery for consultation with the indigenous peoples, but indicates that approaches have been made to the indigenous communities. For example, it cites the organization of the First National Forum on Mining in 2005 and indicates that the Forum’s 11 promoters sent the Government the ten main conclusions of the meeting. The Government also reports that a High-level Commission has been set up with representatives of the Government and the Catholic Church and that in August 2005 an understanding was signed seeking amendment of the Mining Act with regard to compensation, environmental health and consultation of indigenous peoples. The Government also points out that Guatemala has already sought ILO technical assistance to resolve the problems of holding consultations with indigenous peoples within the framework of the Convention. According to the report, the Government acknowledges that "the violence occurred owing to the transport of the machinery carried out in compliance with authorizations properly issued by the competent authority".

10. The Committee notes that the above communication refers to a lack of consultation in the manner prescribed by the Convention regarding the use of natural resources. The relevant provision is Article 15, paragraph 2, in conjunction with Articles 6 and 7 of the Convention. Article 6 refers to the procedure for consultation, Article 7 to the process of development and Article 15, paragraph 2,  governs consultations on natural resources in particular and sets the objective of consultation: "ascertaining whether and to what degree [the] interests [of these peoples] would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of (…) resources pertaining to their lands".

11. The Committee observes that the Government does not deny the alleged lack of consultation and indicates that the company carried out an environmental impact study that was approved by the relevant government department. The Committee also notes that the villagers protested against the mining project and the violence that occurred. Further, the Committee notes the concerns expressed by the Office of the Human Rights Ombudsperson of Guatemala in its report of May 2005 on mining activities. The Office of the Ombudsperson refers explicitly to the project criticized by UNSITRAGUA and expresses concern of the risks of opencast mining and in particular the method used, namely leaching by cyanide. The report indicates that this type of process has had detrimental consequences on the environment and health in other countries, has been prohibited in other regions of the world and its potential impact could harm: (1) water sources; (2) air quality through the emission of particles; and (3) the use and fertility of the soil which is permeated by cyanide compounds. The Committee draws the Government’s attention to the fact that these types of risks should be the subject of consultations, as set out in Article 15, paragraph 2, in conjunction with the studies required by Article 7, paragraph 5, of the Convention.

12. The Committee recalls that the Convention lays down certain requirements to ensure that the exploration and exploitation of natural resources comply with the Convention. It draws the Government’s attention to the fact that these requirements were not fulfilled in the case of the permit referred to by UNSITRAGUA.

13. The impact study carried out by the company is no substitute for the consultations required by Article 15, paragraph 2,. This provision stipulates that "governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands". As the Committee has pointed out in other similar cases, responsibility for consultation lies with the Government, not the company. Furthermore, in establishing or maintaining procedures, governments must take into account the procedural requirements laid down in Article 6 of the Convention and the provisions of Article 7 of the Convention, according to which "Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities."

14. The Committee accordingly invites the Government to carry out consultations with the peoples concerned, taking into account the procedure laid down in Article 6 of the Convention, to ascertain whether and to what degree their interests will be prejudiced, as required by Article 15, paragraph 2,  of the Convention. The Committee also asks the Government to examine whether, with the continuation of exploration and exploitation by Montana-Glamis, it would be possible to carry out the studies provided for in Article 7 of the Convention in cooperation with the peoples concerned before the potentially harmful effects of these activities become irreversible. Please supply detailed information on this matter, taking into account the fact that the Office of the Human Rights Ombudsperson has expressed concern about the award by the Government without consultation of 395 exploration and exploitation permits, some 200 of which are reported to be in the process of being approved.

15. In conclusion, the Committee notes that the two above communications refer to problems and disputes arising from the lack of machinery for consultation. It also notes that this has become a matter of special interest in Guatemala, and that the Government has taken significant steps towards finding a solution, as shown by the information supplied by the Government on the National Forum on Mining, the understanding signed with the Catholic Church and the Government’s request to the Office for assistance in establishing a framework for consultation with the indigenous peoples in the context of the Convention. Stressing that consultation is the key to all other provisions of the Convention, and reaffirming that this is the instrument of dialogue provided for in the Convention as a foundation for an inclusive development process, the Committee urges the Government to step up its efforts to take all the necessary measures, in consultation with the indigenous peoples and with the technical assistance of the Office to give effect in law and practice to Articles 6, 15, paragraph 2, and 7 of the Convention. The Committee hopes the Government will be in a position to provide detailed information on the measures taken and the progress achieved in this regard in 2006.

The Committee is sending a request directly to the Government on related matters and on other points.

[The Government is asked to reply in detail to the present comments in 2006.]

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. With reference to its observation, the Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, in the report dated 1 September 2003 and in the communication to the Office dated 9 June 2003. It also notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64), and the attachments to these reports. The Committee notes the report provided by the Government to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and the content of the reports submitted by the Special Rapporteur to the 59th Session of the United Nations Commission on Human Rights. The Committee also notes the legislative texts provided by the Government with its reports.

2. The Committee is also examining the reports on Conventions Nos. 50 and 64, in the context of the application of the present Convention, thereby complying with its obligation to analyse the implementation of these instruments by the Government. Conventions Nos. 50 and 64 were adopted in relation to the situation of indigenous workers in dependent territories and the Governing Body has decided that these instruments are no longer up to date. As proposed at the time by the Governing Body, the Committee requests the Government to consider denouncing these Conventions when the occasion arises (in 2006 for Convention No. 50 and 2009 for Convention No. 64).

3. Article 4 of the Convention. The Committee recalls that the report of the United Nations Verification Mission in Guatemala (MINUGUA) indicated that serious problems are caused by the fact that members of the indigenous communities, and particularly women and those in rural areas, are undocumented. The Committee notes the information provided by the Government in reply to its previous comments, according to which the Office of the Ombudsman for Indigenous Women (DEMI) and organizations such as the Office of the Ombudsman for the Maya, CONVAIGUA and CERJ are contributing to obtaining documents for indigenous persons. It also notes that a legal extension has been accorded and that instructions have been provided to civil registrars on this important issue. The Committee requests the Government to provide information in its next report on the number of indigenous persons who have been issued with personal documents since the entry into force of Decree No. 22-2002.

4. Article 7. The Committee notes the information provided by the Government in its report indicating that indigenous peoples are consulted concerning their social, economic, political and cultural development, including the preservation of the environment, in joint commissions. The Committee notes the Government’s reply to the comments on the first report made by the Council of Mayan Organizations of Guatemala (COMG) referring to the lack of coordinated planning for development and the absence of studies on its impact on indigenous peoples. It also notes the information that, in accordance with the Decentralization Act, the new Ministry of the Environment, and still more recently the Ecological Consultative Council, promote the participation of indigenous peoples in matters relating to their development. The Committee further notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), referring to the lack of criteria and awareness of the impact on environmental conservation of, among other factors, the deforestation of 90,000 hectares a year and the fact that, according to studies carried out in 1999, only 5 per cent of the potentially irrigable lands are irrigated. The Committee notes with interest the information provided in the Government’s report on the annulment of a contract which in the view of indigenous organizations was damaging to the environment and it trusts that the Government will adopt measures for the preservation of the environment, particularly in areas inhabited by or used by the various indigenous communities. The Committee would be grateful if the Government would continue to provide information on this matter.

5. Article 8. The Committee would be grateful if the Government would provide with its next report copies of judicial decisions or accords concluded through mediation and conciliation giving effect to the right of indigenous peoples to manage their own affairs in accordance with their customs or customary laws. Recalling the concern expressed in this regard by MINUGUA, to which the Committee referred in previous comments, the Committee hopes that the Government will continue to provide information on the progress achieved in this respect.

6. Article 11. The Committee notes the Government’s statement concerning the prohibition in law of forced labour and the inspections of workplaces with a view to combating forced labour. The Committee once again refers to its comments in relation to Convention No. 29.

7. Article 12. The Committee notes with interest that measures are being adopted in the context of the Supreme Court of Justice to achieve an ethnic and bilingual composition of officials whose functions are directly related to indigenous peoples. The Committee requests the Government to continue providing information in its next report on the progress achieved in this respect in the various regions in facilitating the access to justice of members of indigenous communities who wish to protect the rights guaranteed by this Convention and in strengthening the regional activities undertaken by the DEMI and by public institutions such as the National Civil Police. The Committee would be grateful if the Government would provide a copy of the first report of the DEMI on situations and rights of indigenous women. The Committee also notes the information concerning the measures adopted in the context of the Office of the Attorney-General, particularly concerning the establishment of an Office of the Public Prosecutor for indigenous peoples. The Committee requests the Government to provide more detailed information on the composition and functions of the above body.

8. The Committee notes the information provided by the Government in its last report on the establishment by various organizations of the Mayan people of a tribunal to promote awareness against racism. The Committee requests the Government to provide copies of the complaints filed with the above tribunal which are related to the rights protected by the Convention, and any related ruling that is adopted.

9. Articles 13 to 19 (lands). The Committee notes the indication by the Special Rapporteur, referring to the reports of MINUGUA, that the commitments made by the Government under the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) to guarantee the land rights of indigenous peoples have had to be rescheduled owing to lack of compliance. The Committee notes that these commitments related to the regularization of land tenure and guarantees of the rights of indigenous people to the use and management of their lands and resources, as well as the restitution of communal land or compensation for dispossession, and the acquisition of land for the development of indigenous communities. The Committee also notes that the Special Rapporteur recommended that the Government recognize and take measures to support the maintenance by indigenous peoples of their own economic system, including subsistence agriculture.

10. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 indicating that there is no legal guarantee or certainty concerning the use, tenure and ownership of land in rural areas. The Committee notes the information provided by the Government in the report to the Special Rapporteur concerning the action taken to allow access to land by members of indigenous communities and to resolve disputes in this connection. In this regard, the Committee requests the Government to provide information on the activities undertaken by the Presidential Conflict Resolution Unit (UPRECO). It also notes the information concerning the submission to the Congress of the Republic by the recently established Secretariat for Agrarian Affairs of various Bills for the regularization of land tenure, the establishment of an Agrarian Attorney’s Office and on unused and communal land. The Committee also notes the information received in the Government’s last report on Government Agreement No. 248-2003 on the establishment of a Joint Commission on the Land Rights of Indigenous Peoples (COPART) to promote conflict resolution. The Committee would be grateful if the Government would keep it informed in its next report of the progress achieved in this important area, including information on the various issues raised by the Committee in paragraph 17 of its direct request in 2001.

11. With reference to its previous comments, the Committee requests the Government to indicate whether measures have been adopted to increase the number of official administrators of the 124 areas that have been declared protected and which are inhabited by indigenous communities.

12. Article 20. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 according to which most of the men and women living in rural areas, who account for 60.6 per cent of the total population, live in conditions of extreme poverty. It also notes with concern the information provided by the Government in its report for the Special Rapporteur on the grave situation of indigenous persons displaced and unemployed as a result of the coffee crisis, which was reiterated by the Government in its reports on the application of Conventions Nos. 50 and 64. In relation to these matters, the Committee refers once again to the comments made by the COMG and the Central Organization for Rural and Urban Workers on the grave exploitation of indigenous workers in agriculture, domestic work and manufacturing. The Committee requests the Government to continue providing information in its next report on the measures envisaged to improve the conditions of employment and the living conditions of indigenous communities, and the impact of these measures.

13. The Committee notes the information provided by the Government in its report on the application of Convention No. 64 indicating that it is currently formulating specific regulations on the hiring of indigenous agricultural workers. The Committee trusts that the Government is holding adequate consultations with the representative bodies of indigenous communities on the content of these regulations. It also hopes that the regulations on the hiring of indigenous agricultural workers will take into account its previous comments on the application of Convention No. 64, particularly with regard to the need to undertake a medical examination when concluding a contract of employment (Article 7) and on the guarantees which have to be given for the transport of repatriated workers (Articles 12, paragraph 1, and 15). The Committee hopes that the Government will send a copy of the above regulations with its next report.

14. The Committee notes the information provided by the Government that the Indigenous Peoples Unit of the Ministry of Labour and Social Insurance concluded an agreement with the Committee for the Decade of the Mayan People for the establishment of a degree course and the provision of training to attorneys and labour inspectors to promote the application of the Convention. The Committee once again refers to its comments on the application of the Labour Inspection (Agriculture) Convention, 1969 (No. 129), in which it reminded the Government of the need to adopt measures for the training of labour inspectors. The Committee requests the Government to provide detailed information on the progress achieved in the regionalization of labour inspectorates with ethnic and linguistic components and the training of labour inspectors. It also requests it to provide statistics on the number of inspections carried out and violations reported, with particular emphasis on the recruitment and conditions of employment of agricultural workers.

15. Articles 21, 22 and 23. The Committee notes the information provided by the Government in the report to the Special Rapporteur on the activities of the National Institute of Technical and Productive Training (INTECAP), the support provided for the expansion of small and micro-enterprises and the Credit Revolving Fund Programme. The Committee trusts that the Government will provide further information in its next report on the measures adopted in consultation with the communities concerned, with a view to vocational training and the promotion of handicrafts and rural-based industries, which form part of their subsistence economy.

16. Article 25. The Committee reiterates its previous comment requesting the Government for additional information on the measures envisaged to provide adequate health coverage in the areas inhabited by indigenous peoples, taking into account the linguistic and cultural conditions of the community, particularly with regard to traditional care, and promoting the training and employment of workers from local communities in assistance centres.

17. Articles 26 to 30. The Committee notes the Government’s indication that the Joint Reform and Participation Commission began work in 2002 on the regionalization of linguistic criteria for the administration of education, health and cultural services, and the information provided on the activities launched in the context of the National Literacy Programme. The Committee requests the Government to continue providing information in future reports on the impact of the activities undertaken in relation to the literacy rate of members of indigenous communities, as well as the progress achieved in the field of bilingual literacy at all educational levels, particularly in rural areas, and for the inclusion of themes which take into account the cultural and historical heritage of indigenous traditions.

18. The Committee notes the information provided by the Government in the report submitted to the Special Rapporteur concerning the examination of a new project to allocate 26 radio frequencies. It also notes the plan to launch, with the support of the Academy of Mayan Languages, a radio campaign in Mayan languages to promote and provide information on the new legislation in the various indigenous communities. The Committee trusts that the Government will continue to provide information on these matters in its next report.

19. Article 32. The Committee notes the information provided by the Government concerning the adoption of measures relating to the movement of migrant workers at the border. The Committee trusts that the Government will continue to provide information on the activities undertaken in this field.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. The Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, the report dated 1 September 2003 and the communication transmitted to the Office on 9 June 2003. It also notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the annexes to the above report. The Committee also notes the report provided by the Government to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and the content of the report prepared by the Special Rapporteur for the 59th Session of the United Nations Commission on Human Rights, held in February 2003. The Committee further notes the legislative texts provided by the Government with its reports, and particularly Government Agreement No. 258-2003 establishing the National Compensation Programme.

2. The Committee also notes the detailed report on the application of the Convention sent by the Trade Union of Workers of Guatemala (UNSITRAGUA) in September 2003, and requests the Government to provide its comments thereon with its next report.

3. Article 2 of the Convention. The Committee notes the intense legislative activity, particularly over the past two years, on the rights of indigenous peoples and their development. The Committee notes with interest the reform of the Penal Code (Decree No. 57-2002) penalizing discrimination on grounds, among others, of race and ethnic group; the adoption of the Act promoting educational activities against discrimination (Decree No. 81-2002) implementing non-discrimination programmes in teaching and the activities of the Ministry of Culture and Sport; and the adoption of the Act respecting national languages (Decree No. 19-2003) guaranteeing and protecting the languages of the Maya, Garífuna and Xinka peoples. It also notes the reforms to the Municipal Code by Decree No. 12-2000, particularly with regard to the recognition of indigenous authorities and their customary laws. The Committee would be grateful if the Government would provide information on the manner in which the new legislative structure relating to indigenous peoples will be made known to the public in general. It also requests the Government to provide a general evaluation, in so far as possible, on the impact of the new legislation on the application of the provisions of the Convention.

4. The Committee notes with interest the information provided by the Government concerning the establishment of an Indigenous Affairs Commission in the Supreme Court and the creation of the Presidential Commission on Discrimination and Racism against Indigenous Peoples in Guatemala (Government Agreement No. 390-2002). It also notes the restructuring of the Guatemalan Indigenous Fund (FODIGUA), as well as the adoption of Ministerial Agreement No. 525-2002 of the Ministry of Culture respecting sacred sites. The Committee would be grateful if the Government would provide a copy of this Agreement with its next report and provide information that is as detailed as possible on the activities of the above commissions and the Fund for the achievement of their respective objectives.

5. The Committee takes special note of the information provided by the Government in its report to the effect that the measures adopted have not yet been sufficient to eliminate the inequality, marginalization and exclusion of indigenous peoples. It also notes the Government’s indication that, although the authorities justify the measures taken against racism and exclusion on the basis of the principle of equality, this principle is not given effect in law or practice. The Committee welcomes the attitude shown by the Government when it charges racists of failing to recognize that a people that has been subjected for 300 years requires effective mechanisms to strengthen it and create the conditions for its development in a manner which gives effect to the principle of equality. While recognizing that, despite the efforts made, these ideals cannot be achieved easily and in the short term, the Committee encourages the Government to continue its efforts to convert these aspirations into reality, based on the strict application of the programmes adopted and their follow-up as necessary.

6. The Committee notes the information provided in the report of the Special Rapporteur indicating that the measures adopted by the Government have had little effect in combating the political, economic, social, occupational, educational and cultural discrimination suffered by indigenous communities. The same opinion was expressed previously in the report of the United Nations Verification Mission in Guatemala (MINUGUA) in 2001, which was examined in detail in the Committee’s previous observation. The Committee expresses the very firm hope that the Government will be in a position to provide information in its next report on the positive impact of the legislative measures and various initiatives it has taken to promote tolerance in civil society and to provide a basis for the effective participation of indigenous peoples in the adoption of decisions in the areas referred to by the various parts of the Convention, as well as for the implementation of the Peace Agreements, and particularly the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) and in relation to the socio-economic and agrarian situation.

7. Article 6. The Committee takes due note of the information contained in the Government’s report indicating that, although an ideal mechanism has not been established for consultation with indigenous peoples, the Government’s policies are not prejudicial to these peoples. The Committee notes in this respect the information provided by the Government indicating that the representation of the Government and indigenous peoples has been increased in the Joint Reform and Participation Commission to strengthen its plurality and increase the participation of women. It also notes that the Commission is currently formulating draft legislation on consultation mechanisms with indigenous peoples. The Committee trusts that the Government will be in a position to report the adoption of this legislation in its next report and to provide details of the degree of representativeness achieved, taking into account the existence of the numerous indigenous communities. With reference to the information provided in the Government’s last report, the Committee would be grateful if it would provide information in its next report on the progress achieved in the establishment of a consultative body for the Mayan people.

8. The Committee notes with interest that, through the Joint Reform and Participation Commission, proposals made by the representatives of indigenous peoples have been incorporated into the Decentralization Act, the Act respecting urban and rural development councils and the Municipal Code. The Committee requests the Government to provide information in its next report on the number and nature of the consultations held with indigenous peoples under section 26 of Decree No. 11-2002, which amended the Act respecting urban and rural development councils.

9. Article 20. The Committee notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), which it is examining in the context of the present Convention. It notes that a special recruitment contract has been developed to guarantee the rights of indigenous workers in relation to labour recruiters. It also notes the information concerning the forms used by the Association of Employment Advisers to prevent abusive practices in the hiring of temporary Guatemalan migrant workers. The Committee requests the Government to continue providing information on the measures adopted or envisaged to control abusive practices in the recruitment of indigenous workers for agricultural activities which occur, according to the Government, both in Guatemala and in the south of Mexico and Belize. Please also indicate any measures to prevent chiefs and other indigenous authorities acting as recruiting agents or exerting any pressure on workers who may be recruited, or who receive pay or any other special consideration for assisting in recruitment. The Committee notes that comments on the application of Convention No. 50 were included in the communication by UNSITRAGUA.

10. A more detailed request is also being addressed to the Government on certain points.

[The Government is asked to report in detail in 2005.]

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee refers to the observation it is making this year.

2. Article 1 of the Convention. The Committee notes from the information communicated by the Government that of a total population of 10.5 million, 5.1 million are indigenous, composed of 24 ethnic groups. It also notes that some 1.38 million indigenous people live in urban areas, and 3.75 million in rural areas.

3. Article 2. The Committee notes the information provided by the Government on the work undertaken for the implementation of the Peace Agreements, which has resulted in the creation of a number of joint committees, two special commissions and one on the recognition of indigenous languages and sacred places. It also notes that the indigenous peoples themselves have organized eight national permanent commissions on questions including women, indigenous law and constitutional reform for which there are corresponding mechanisms for dialogue with the Government. The Committee notes, however, that the MINUGUA report referred to in the observation indicates in paragraph 88 that, while the joint committees are important mechanisms for discussion and consultation, they also have encountered problems including: (1) the representative nature of the indigenous side has been questioned as the broad and dispersed indigenous movement evolves; (2) the Government’s representatives have not always had the power to take decisions; and (3) there have been budgetary limitations on their functioning, and for disseminating and consulting on their proposals. Recalling that these are important mechanisms for the implementation of the Convention and for consolidating the Peace Agreements, the Committee hopes the Government will do everything possible to improve their functioning and that it will keep the Committee informed of their progress in future reports.

4. Article 3. The Committee notes from the report that there is a draft legislative decree to amend the Penal Code and make racial discrimination a crime, which the Committee understands still has not been adopted. Please indicate in the next report the progress that has been achieved in this respect.

5. Article 4. The Committee notes the information provided in the Government’s report on the functioning of the Joint Commission of Reform and Participation at all Levels, which was established by Government Agreement No. 649-97. It notes that this Commission has completed proposals for reforms to the Municipal Code and to the law concerning the National System of Development Councils, and has carried out various studies concerning participation of indigenous peoples in decision-making in various fields. The Committee also notes that following the failure of the constitutional reforms, the Commission has decided to revise its proposals. Please provide information on the form this has taken.

6. The Committee notes from the MINUGUA report cited above (paragraphs 79-82) the serious problems caused by the fact that many indigenous peoples are undocumented, particularly indigenous women in rural areas. It notes the adoption of a law concerning documentation (Ley Temporal de Documentación), but also notes MINUGUA’s comment that no regulations have been adopted to apply it, and that the lack of training of the civil registrars has limited its effect. Please provide information on the measures taken to make this legislation effective.

7. Article 6. See the observation.

8. Article 7. As concerns participation of indigenous peoples in decisions concerning development as it affects them, the Committee notes that the Government has referred to urban and rural development councils, but has not indicated whether they have indigenous participation and if so at what level, nor has it supplied information on their workings. It has also indicated that many consultations are carried out concerning development plans, in the context of decentralization.

9. On the need to undertake studies, in cooperation with the peoples concerned, to assess the impact on them of planned development activities, and the obligation to preserve and protect the environment they inhabit, the Government has referred to the bodies responsible for this, and states that there are 124 areas declared protected, which are inhabited by indigenous communities, though unfortunately only 99 of them have an officially assigned administrator. At the same time the Council of Mayan Organizations of Guatemala (COMG), in its observations on the Government’s first report, said that there was little coordinated planning concerning development, and that no impact studies are carried out. The Committee requests the Government to provide information on how the consultation of indigenous peoples’ organizations concerning development, including for the preservation of the environment, is carried out in practice.

10. Articles 8, 9 and 10. The Committee notes that a provision which would have recognized customary law of the indigenous peoples, was included in the constitutional reforms that were not adopted. It notes from the report, however, that a recent reform of the Penal Procedure Code (Decree No. 79-97) created Community Justices of the Peace who are empowered to apply "the uses and customs of the different communities for the solution of conflicts"; this, however, applies only to conflicts and not to other areas of law. The Government has also signalled a growing interest among state institutions to recognize cultural diversity, such as the recruitment of some bilingual officials for the Public Defender’s office and in the judiciary support services, the research being carried out into customary law, as well as the training programme for judicial interpreters of indigenous languages being carried out with the support of MINUGUA. In addition, it notes the incorporation of cultural training in the National Civil Police Academy, and the launching of a process of consultation with indigenous organizations by the Human Rights Prosecutor. The COMG says in its comments, on the other hand, that the creation of the Community Justices of the Peace is a violation of the Agreement on the Identity and Rights of the Indigenous Peoples, in which the Government promised to respect the right of indigenous peoples to handle their own internal affairs.

11. The MINUGUA report devotes considerable space (paragraphs 56-67) to this question, concluding that there is a real prejudice against indigenous customary law on the part of the "practitioners" (operadores) of the justice system, mostly based on ignorance of both the languages and the cultures of the indigenous peoples. The report states (paragraph 58) that "In some cases, the cultural barrier can mean that cultural differences are criminalized." The report also indicates that there have been some advances in this area, citing the increase in posts for judicial interpreters, and encouragement of the recruitment of judges who speak indigenous languages in areas where indigenous peoples are in the majority. Nevertheless, the few institutions, national and international, which are trying to provide bilingual and bicultural officials, cannot cope with the demand. Finally, the MINUGUA report indicates that studies have shown that the majority of indigenous peoples in the country retain and exercise their own normative systems for their internal affairs.

12. The Committee notes the fundamental nature of this problem, and that the measures so far taken have not been able to respond adequately to the need. It encourages the Government to continue to work on this problem, in consultation with the indigenous peoples, and to provide information in its next report about the progress achieved and the additional measures being taken.

13. Article 11. The Committee refers to its comments under Conventions Nos. 29 and 105 concerning the exaction of forced labour from indigenous peoples, and the impunity of those who impose it. It requests the Government to provide detailed information on the suppression of forced labour among indigenous peoples, including the implementation of the "Food for Work" programme in indigenous communities.

14. Article 12. The Committee notes that the Government indicated in its first report that access to justice is available to all for no cost, and that in order to allow access by members of the indigenous peoples to labour inspectors, all those working in indigenous areas must be bilingual. Other measures concerning bilingual officials have also been indicated (see above). The Committee notes in this connection the report of the United Nations Special Rapporteur on the Independence of Judges and Lawyers on his mission to Guatemala (UN document E/CN.4/2000/61/Add.1 of 6 January 2000) in which he indicates in paragraph 108 that: "The most common contention the Special Rapporteur encountered was that the Mayan people have suffered from discrimination before the courts. There were allegations that this discrimination, including by judges, extended to indigenous defence lawyers, witnesses and court officials. A facet of this discrimination was that there is allegedly no budget allocation for the provision of interpreters."

15. The Committee requests the Government to provide information on the methods which have been taken or are contemplated to guarantee to these peoples the right to initiate legal proceedings and to understand and be understood in them in order to protect their legal rights.

16. Articles 13-19. Land. The Committee notes the statement in the Government’s report that land-related conflicts in Guatemala are extremely complex because of the many causes of such conflicts - historical, ethnic, political, religious, etc. - intensified by the internal armed conflict, the lack of a national land register and the inadequacy of the General Property Register, among other causes. The Government states that the Agreement on Socio-economic Aspects and the Agrarian Situation recognizes the importance of the resolution of land conflicts for the construction of peace, and the Government therefore promised to put into place a Presidential Office for Legal Assistance and the Resolution of Land Conflicts (CONTIERRA), which was done in July 1997. The Committee notes also the creation of the Joint Committee on the Land Rights of Indigenous Peoples, and a number of other measures in this regard. The comments by the workers’ organizations point to continuing problems in this area, to loss of rights by indigenous communities and incursions on their lands, and related problems. The MINUGUA report refers (paragraph 73) to the lack of official recognition of indigenous land rights, lack of precision in the definition of boundaries of indigenous lands and the frequent absence of land registration.

17. The Committee requests the Government to provide detailed information in its next report on the measures taken or contemplated in this area, including the abovementioned questions and:

-  progress on the adoption of the Basic Law on Land (Ley del Fondo de Tierras);

-  whether procedures have been established for consultation of indigenous communities before undertaking or permitting any programme for the exploration or exploitation of natural resources on indigenous lands (Article 15(2));

-  the practical application of customary indigenous agrarian law in the transmission of land rights (Article 17);

-  information on measures taken or contemplated to prevent unauthorized intrusions onto indigenous lands (Article 18).

18. Article 20. Conditions of work. The Committee notes from the Government’s reports that no special measures have been taken to protect the rights of indigenous peoples in the field of labour, though the Ministry of Labour continues its process of decentralization to the different regions of the country. The comments by the COMG and the Central Organization for Rural and Urban Workers (CTC) indicate that serious exploitation of indigenous workers continues to exist in agriculture, domestic service and manufacturing, and that labour inspection for these peoples exists only in theory. The Committee requests the Government to provide detailed information on the measures taken to provide labour inspection in areas and occupations in which indigenous peoples are concentrated, with particular attention to the detailed comments which the Committee has made on the application by Guatemala of the Labour Inspection (Agriculture) Convention, 1969 (No. 129).

19. Articles 21 and 22. The Committee notes that in the context of the Peace Agreements, the Government committed itself to a large programme of vocational training for indigenous workers. It notes from the report the large number of indigenous students who have so far been trained, and requests the Government to continue providing information on this in future reports.

20. Article 23. The Committee notes that the Government has provided no information on the promotion of traditional handicrafts and rural-based industries, and that the COMG and the CTC state that no such programmes exist. Please provide information in the next report on any measures that may be contemplated in this regard.

21. Articles 24 and 25. Social security and health. The Committee notes the information the Government has provided on the number of health posts and other medical facilities in indigenous areas. It notes the statements in the information provided by the COMG and the CTC that there are no hospitals in Mayan areas, only some health posts, and that they are staffed by monolingual persons who do not speak the languages of the communities in which they work. Please provide additional information on the measures contemplated to provide adequate health coverage in areas inhabited by indigenous peoples.

22. Articles 26-30. Education. The Committee notes with interest the detailed information communicated by the Government in this respect. It notes that the Joint Committee for Educational Reform submitted its Design for Educational Reform in July 1998, and that draft legislation on this subject is before the Congress. The COMG and the CTC indicate, on the other hand, that reform is blocked by interested parties who focus on a monolingual approach and are not interested in educational reform. The abovementioned MINUGUA report indicates that, while budgetary provision is adequate, and there has been an increase in the coverage of education, and the Design of the Educational Reform corresponds to the obligations undertaken in the Peace Agreements, there remain many gaps in indigenous education. Please continue to provide information in this regard.

23. Article 31. Means of communication. The Committee notes the statement in the Government’s report that significant means of access to radio communications have been provided to indigenous communities. It also notes that the COMG and the CTC indicate that the access provided is very limited, and emphasize the need for radio communications to help educate the indigenous population about their rights, including the provisions of Convention No. 169. Please provide additional information in this regard in the next report.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee notes the Government’s second report following ratification, which was received too late to be examined at the previous session. This report, supplied by the Government in October 2000, provides more detailed information on a number of matters than was included in the first report. However, on many of them it indicates that the measures to be taken were covered by the referendum on constitutional reforms which was drafted in implementation of the Peace Agreement. This referendum was rejected by a popular vote on 16 May 1999, but the Government has offered little additional information on the measures which have been taken since then or are contemplated, to implement the Convention and the Peace Agreement.

2. The Committee also notes a communication from the Central Organization for Rural and Urban Workers (CTC), which was communicated to the Government on 28 September 2000, but concerning which the Government has made no comments. The CTC communication indicates that it was drawn up in consultation with the Council of Mayan Organizations of Guatemala (COMG) and the National Indigenous and Rural Coordinating Organization (CONIC). It is characterized as the Second Alternative Report on the application of the Convention, from the perspective of the Mayan people and Guatemalan workers. It also indicates that it is following up the First Alternative Report, submitted by the Federation of Rural Workers (FEDECAMPO), on whose report the Committee regrets the Government also has provided no reply.

3. The other principal source of information available to the Committee is the various reports of the United Nations Verification Mission in Guatemala (MINUGUA), established by the General Assembly in 1997 to verify compliance with the Peace Agreements. The most recent of these reports, published in September 2001, is entitled "Indigenous peoples of Guatemala: Overcoming discrimination in the context of the Peace Agreements" ("Los pueblos indigenas de Guatemala: la superación de la discriminación en el marco de los Acuerdos de paz"). MINUGUA has also published a number of other reports which give a clear picture of the situation.

4. These sources taken together indicate that major problems remain in the implementation of the Peace Agreements as concerns the indigenous peoples of the country, and in the implementation of the Convention. The CTC report details, in respect of most of the Articles of the Convention, the lack of decentralization of administration to the regional level that was contemplated in order to provide indigenous peoples with a greater voice in the administration of their own affairs. It states that "(T)he Peace Agreements have facilitated dialogue between representatives of the Mayan organizations and the Government, but they have not generated real results; for example, the Executive Body has not consulted indigenous organizations and communities on the process of decentralization".

5. The trade union organizations also comment on the lack of real consultation with the indigenous peoples of the country on the implementation of the Peace Agreements (Article 6 of the Convention). They state that although mechanisms are provided for, they are not actually functioning. The Government has indicated in its last report, on this question, that the Congressional Committee on Indigenous Communities which has a majority of indigenous members constitutes a direct channel for the indigenous peoples to make their views known. Please provide additional information allowing an assessment of the situation in practice.

6. The Committee notes also the following comment by MINUGUA in its September 2001 report, based on close observation in the country of the developing situation: "The Mission has noted on several occasions that the commitments made concerning the indigenous peoples are among those which have been least implemented. The overall balance of the application of the Agreements indicates that most of the actions which were provided for to overcome discrimination and provide to the indigenous peoples the place they should have in the Guatemalan nation, are still awaiting fulfilment. This does not correspond to the changes proposed in the Agreements, but instead favours the persistence of a monocultural and exclusive model." (Unofficial translation, paragraph 9.)

7. While recognizing the complexity of the situation, the Committee nevertheless recalls that the ratification of the Convention was one element in the settlement of the internal conflict in the country which - as indicated in the preamble of the 1996 Peace Agreement -"brought an end to more than three decades of armed confrontation in Guatemala". It therefore urges the Government to renew its efforts to overcome difficulties in the application of the Convention and the Peace Agreements, and to continue to provide information to the Committee on how it is accomplishing this. In doing so, the Committee expresses the firm hope that the Government will comment on the observations made by workers’ organizations in the country, together with the indigenous peoples, and that the Committee will be in a position to note in the near future that concrete measures have been taken to apply the Convention.

The Committee is raising a number of more detailed matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes with interest the Government's first report referring to deliberations under way on the concrete implementation of the peace accord, and in particular the Agreement on the Identity and Rights of the Indigenous Peoples. It notes that this work is under way with the assistance, among others, of the International Labour Office. The Committee notes, however, that it does not contain detailed information on most of the Articles of the Convention. The Committee is therefore raising at this point only some of the most urgent issues, and hopes to carry out a more detailed examination when it receives a more detailed report on the measures taken or contemplated to implement the Convention.

2. Article 1 of the Convention. The Committee notes that the groups covered by the Convention are those of Maya, Garifuna and Xinca descent, and that they number some 5 million in the country.

3. Articles 4 to 7. The Committee notes that the Joint Committee for Reform and Participation created under the Agreement has within its mandate to study the status and legal capacity of indigenous communities and their authorities, as well as customary law and measures for the defence of their interests, as well as obligatory consultation mechanisms and institutional forms for individual and collective participation in decision-making. As these questions are at the core of the Convention's philosophy, the Committee looks forward with interest to the recommendations of the Joint Committee and the manner in which they are implemented by the Government. Please indicate in the next report any progress achieved in this regard, and if possible send copies of any reports this Joint Committee may have issued, and of any consultation mechanisms put into place as provided for in the Convention.

4. Articles 8 to 12. The Committee notes that the Government is examining the ways in which the customary legal systems of these peoples can be taken into account by the national judicial system, in the different ways covered by these Articles. Since this is an extremely important element both of the application of the Convention and of the implementation of the peace agreement, the Committee would be grateful if the Government would communicate with its next report any results so far achieved in this regard.

5. Articles 13 to 19. The Committee notes from the brief information provided under these Articles that a Joint Committee on the Land Rights of Indigenous Peoples and an Institutional Commission for the Development and Strengthening of Land Rights have been created, and they are drafting legislation and a programme of action on the question of indigenous land rights. It notes with interest the segment of the global peace agreement entitled "Agreement on Socio-economic Aspects and the Rural Situation", which will also affect the implementation of these Articles. In view of the importance of this issue to the consolidation of the peace process, the Committee hopes that this process will move as quickly as possible, and awaits with interest the results of these examinations.

6. Article 25. The Committee notes with interest the detailed information provided on health facilities available for the indigenous peoples of the country.

7. Article 26. The Committee notes also the detailed information on education facilities, as well as the fact that a Joint Committee on Educational Reform has been created under the peace agreement. It looks forward to receiving updated information in this regard with future reports.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. The Committee notes with interest the Government's first report following ratification of the Convention, and is addressing a request directly to it asking for more information. The Committee notes, furthermore, the communication sent by the Popular Federation of Peasant Farmers on the application of the Convention, which was received shortly before its session. The Committee hopes that the Government will send detailed comments on this communication to be examined in its next session.

2. The Committee recalls that the ratification of the Convention was one element in the settlement of the internal conflict in the country, which -- as indicated in the preamble of the 1996 Peace Agreement -- "brought an end to more than three decades of armed confrontation in Guatemala". It notes in this respect that the ILO continues to play a part in the implementation of the Peace Agreement, and that considerable technical assistance is being provided from the international community for this purpose.

3. The first report is a brief one, and on a number of questions the Government indicates simply that the mechanisms set forth to implement the Peace Agreement have not yet concluded their work. The Committee requests the Government to report in detail on the progress achieved in implementing the obligations undertaken under the Peace Agreement and the Convention. It looks forward to a more detailed report in reply to its present comments, and encourages the Government to continue working with the assistance of the Office to create the necessary conditions for the Convention's full implementation.