After the gold rush, Guatemalan underdogs are close to victory in the battle for clean water and land rights, writes Salt columnist Susan Kemp.
Fans of Better Call Saul will recall the young Jimmy McGill in the back room of a nail salon, putting together a case against care home bosses. For the mature reader, think Erin Brockovic or Colombo relentlessly pursuing the truth. This is Carlos Loarca’s world.
Working out of a spare room in his parents’ house, the 52-year-old Guatemalan represents indigenous Mayan villagers suing their government for allowing a mining company to operate on their land. I first met Carlos in the nineties, working in Guatemala on the genocide prosecution of General Rios Montt. Since then, we’ve both quit smoking, gained a few pounds and grey hairs; the General has been tried, convicted, freed, and placed under house arrest again. But one thing hasn’t changed. Carlos has a stubborn streak, and it may be about to pay off.
His clients, like community leader Crisanta Perez, are a formidable force and together they built a lawsuit claiming an illegal land grab from local communities and contamination of their water supply, causing illness. After eight years of litigation that ended 2 July, the Inter-American Human Rights Commission in Washington DC is preparing its judgment, which promises to be a seminal ruling on mining and indigenous rights.
The Marlin mine sits near the Mexican border, among tree-covered mountains inhabited by the Sipakapense and Mam peoples, and is run by a subsidiary of Canadian giant Goldcorp. The company holds local court orders stating that land had no prior owners and that its discussions with villagers about the impact complied with Guatemalan law.
But Carlos and Crisanta produced earlier land titles and argue that Goldcorp and the government ignored the American Convention on Human Rights and an ILO Convention on Indigenous and Tribunal Peoples. The UN agrees. In a 2011 report on the mine, it condemned the intimidation of activists and the lack of proper community consultation.
This case could shift the balance of power between state and mining interests, and indigenous peoples. It will also resonate internationally in the financial and extractive sectors.
Pending the Commission’s decision, emergency measures were ordered that initially included closing the entire mine. The World Bank is also in the frame, having given Goldcorp a loan to build the mine. Guatemala and the WB have history here: The government fell foul of the Inter-American Court of Human Rights in 2012 leading to US legislation forcing the WB to compensate villagers affected by its Chixoy Dam project.
But the UN rejects reliance on national laws, stressing that “due diligence” requires companies to respect international human rights standards.
The resolution of the case can’t come soon enough according to the villagers. Studies by Guatemalan authorities, verified by Canadian labs, show that nitrogen, lead and arsenic exceed legal limits, leading to a damning verdict from the world’s first Peoples’ International Health Tribunal.
Effects include skin problems, and gastro-intestinal and neurological illness, yet villagers must pay to access clean water wells. Meanwhile, local supporters of the mine fear the loss of jobs and community conflict has attracted police and military intervention.
Guatemala doesn’t lack lawyers that can beat impossible odds. In 2013, it became the first country to convict a former president of genocide in credible proceedings. Its prosecutors have brought down drug cartel leaders and this year, with the help of the UN, they busted a criminal network involving the vice president.
Staying power can be the difference between success and failure in such cases. This fight demands Carlos’ full time attention, pro bono, since his clients are among the poorest Guatemalans. He has sold his car, given up his apartment and office, and moved back home with his non-profit “Plurijur”, a team of dedicated young volunteers. Donors are scarce, and some say villagers should accept a deal.
Goldcorp is prepared to talk but the government remains silent. Carlos is stubborn enough to fight another eight years and Crisanta has refused to let even her arrest stand in the way, but with local villagers living in poverty the pressure to accept a settlement is about to become intense.
Keep up with developments in English here.
Susan Kemp is is a legal consultant and commissioner at the Scottish Human Rights Commission. She can be found Tweeting at @SLKemprights
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Photo credits: Fraukedecoodt: (Creative Commons Attribution-NonCommercial 3.0 Unported License), from http://fraukedecoodt.org/2012/07/15/dividir-y-vencer/, and Plurijur