Indigenous Rights, Resistance, and the Law: Lessons from a Guatemalan Mine

Indigenous Rights, Resistance, and the Law: Lessons from a Guatemalan Mine Amanda M. Fulmer Angelina Snodgrass Godoy Philip Neff ABSTRACT Using a case study of a controversial mine in an indigenous area of Guatemala, this article explores the transnational dynamics of development and regulation of large-scale extractive industry projects in the developing world. It examines the roles played in the Marlin mine dispute by national law, international law, international financial institutions, and corporate social responsibility. It concludes that these legal regimes have a role in protecting human rights but have not addressed the fundamental questions of democratic governance raised by this case.

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n January 2005, thousands of Mayan peasants descended on a crossroads of the Pan-American Highway at Los Encuentros, Guatemala, to block the passage of a convoy headed for rural San Marcos. The convoy carried a milling cylinder for use in the Marlin mine, a $250 million project of the Canadian company Glamis Gold.1 The project was backed by the Guatemalan government and the World Bank, yet controversial among the impoverished indigenous communities in which it was established.

The indigenous farmers and villagers at Los Encuentros insisted that mining was not welcome in the highlands and threatened to push the cylinder off a cliff. A tense standoff ensued as the equipment waited on the roadside for days under the eyes of police and protesters alike.

National authorities, including President Oscar Berger, insisted on the need to enforce the rights of investors (Solano 2005), while local leaders insisted, “we shall not let them pass” (Solano 2005, 112). Eventually, hundreds of police and soldiers were called in to escort the equipment on its way. As protesters mobilized to block passage, shots were fired.

The cylinder made its way to San Marcos, but in its wake Raúl Castro, a protester, lay dead, and 16 protest leaders, among them the indigenous mayor, were accused of terrorism (Solano 2005, 112).

This episode occurred in the context of a many-year dispute over the Marlin mine, which began when the project was in its early plan-

© 2008 University of Miami

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ning stages. Although the violent encounter drew particular attention in the press, the incident was hardly the only conflict to erupt; nor was the Marlin mine the first major project in Guatemala to provoke such heated controversy. The mobilization of indigenous Guatemalans to stave off unwelcome “development” initiatives is nothing new; sadly, neither is the spilling of blood in the process.2 The clearest illustration of this propensity for tragedy when development plans are conceived in the context of endemic structural violence and state repression is the construction of the Chixoy Dam, a World Bank–funded hydroelectric project carried out in the 1980s despite opposition from Mayan populations whose lands were flooded in the process. This opposition was decried as subversion by a virulently anticommunist government, and numerous communities were slaughtered in a series of brutal massacres by state forces and their paramilitary adjuncts (Chen 2007).

Fortunately, the current controversy over mining unfolds in a profoundly different context. Guatemala is no longer embroiled in a civil war, and while most of the socioeconomic problems that fueled the conflict have yet to be systematically addressed, it would appear that human rights advocates today enjoy an unprecedented array of instruments and institutions to use to prevent the kinds of abuses that characterized past controversies. The Marlin case would appear a textbook example of multisited global governance regimes, as the “development” in question has been proposed and contested through transnational civil society mobilization; national and international human rights litigation; the use of international institutions, such as the International Labour Organization; voluntary protocols; and other forms of corporate social responsibility, along with increased monitoring and involvement by funding agencies, such as the World Bank.

Yet if this is the textbook example, the lesson is far from encouraging. Through an examination of the recent proliferation of laws and regulatory regimes relevant to this case, this article argues that, perhaps ironically, this remarkable new confluence of overlapping laws, institutions, and initiatives adds up to less than the sum of its parts. In a climate in which national governments exercise less, not more, ability to regulate financial flows and the operations of corporations in their territory (Stiglitz 2006), this proliferation of laws and lawlike principles creates a set of shifting authority structures and subjective norms. Without clear directives as to how and when they are to be implemented, more mechanisms for accountability have only added to the confusion, creating a haphazard collection of lawlike artifices that ultimately amount to a Rorschach “inkblot” test of social responsibility, in which the meaning of laws shifts according to the onlooker’s subjective perception.3

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The controversies surrounding the Marlin project involve numerous issues and an array of diverse actors. The case has marked a number of historic “firsts.”4 It was the first mining project authorized by the Guatemalan government following the passage of a 1997 mining law designed to attract foreign investment. At the time, it was touted as the largest mineral deposit of its kind in Central America and held up as an example of the country’s new development prospects as it entered the postwar period (Solano 2005, 110). In 2004, two years after the Guatemalan mining ministry awarded the rights to the project to Glamis Gold, the International Finance Corporation (IFC), the private sector lending arm of the World Bank, pledged the project a $45 million loan; it was the first loan undertaken by the agency following a thorough internal review of past projects’ failure to produce sustainable development outcomes. For the Guatemalan government, for Glamis Gold, and apparently for the IFC, the Marlin project promised new hope for rural Guatemala: not only would the project create jobs in one of the country’s poorest and most excluded areas, but the company had put together an unusually generous package of incentives, including payment of some local schoolteachers’ salaries, construction of local roads, and the creation of a corporate-funded foundation to finance community development initiatives.

Yet the project sparked intense criticism from its initial days, especially in the municipality of Sipacapa, where the first public protest against the mine took place in 2004 (Solano 2005, 110–11).5 The Catholic Church, and particularly the vocal bishop of San Marcos, Msgr.

Alvaro Ramazzini, began to raise concerns about the benefits to local communities. The number of jobs created by the project has been relatively low, their duration largely restricted to the initial construction phase; and higher-paying jobs for specialists have gone to people from outside the area (Castagnino 2006).6 Furthermore, the revenue the local government gets from the mine through taxation, utility payments, and other sources is extraordinarily limited. Critics have pointed to the company’s contract allowing it unlimited use of local water supply without mandating any compensation to local communities for the use of this resource. “We don’t want gold; what we want is to defend our way of life and our water,” Timoteo Tujil, a Sipacapa resident concerned about mining, told a reporter (Daniel 2005).

Critics often weigh these limited benefits against a large set of perceived risks, particularly to the environment. An open-pit mine, the Marlin project uses a cyanide leaching process, banned in some U.S. states because of its potential to poison water; and the mine’s proximity to water sources that sustain agricultural production in the region has

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generated concern (Perlez et al. 2005). These practices have made the Marlin project a lightning rod for criticism from ecological groups such as MadreSelva, a Guatemalan nongovernmental organization focusing on the environment, and Friends of the Earth, an international NGO. Criticisms of the Marlin mine project run deeper than policy disputes, however. Many indigenous groups argue that large-scale mining operations of this sort run fundamentally counter to the Mayan “cosmovision,” in which human societies depend on and are inseparable from their relationships with the earth and the broader environment. Open-pit mining using toxic chemicals, some Mayan leaders argue, is fundamentally incompatible with such a worldview. Rodolfo Pocop, a leader of the Guatemalan peasants’ rights group CONIC, states, “our spirituality is precisely the harmony between humans, Mother Earth, space, and nature.

We feel like this kind of mining represents a destruction of life and culture” (quoted in Oxfam America 2005). A United Nations report addressed the issue of indigenous peoples and their relationship to land, concluding, “Indigenous peoples have explained that, because of the profound relationship that indigenous peoples have to their lands, territories and resources, there is a need for a different conceptual framework to understand this relationship and a need for recognition of the cultural differences that exist” (cited in Anaya and Williams 2001, 49).

A representative of a Maya rights group in Guatemala said in an interview that while he had criticisms of Guatemala’s proposed new mining law, the real problem was ultimately more fundamental. Indigenous people have a different way of seeing the world than others do, and their cosmovision centers on a harmonious relationship with Mother Earth. Mining activity is always environmentally destructive, never sustainable, he argued (Maya representative 2005).7 The mine has also attracted considerable international attention and has been featured in reports by humanitarian, watchdog, and advocacy groups including Oxfam America, the Bank Information Center, Rights Action, Mining Watch Canada, and the Halifax Initiative Coalition.

While the controversy has led to some attempts at dialogue, most notably the formation of a high-level commission (including representatives from mining companies and civil society) to advise the Guatemalan government on rewriting its mining law, these have largely failed to resolve the conflict, partly because of a deep distrust among many of the parties involved. In this climate, much of the discussion has centered on technocratic fixes. Reform proposals have tinkered with the royalty rates or advocated new provisions for environmental protection, yet have left unaddressed the more fundamental questions, over which intractable opposition has already claimed lives: who decides what counts as “development”? What are the mechanisms for ensuring the participation of local communities, and what are their limitations?

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What lies at stake in these broader debates is not a technical solution to problems of water pollution or royalty rates but a core problem of neoliberal democracy that extends far beyond mining itself: whose interests is economic development designed to serve? Who is empowered to speak on their behalf? These questions are not limited to neoliberal regimes, but their focus on private sector–led initiatives makes the issue of representation particularly acute.

After exploring the various forms of legalization at play in the debate over the Marlin mine, this article returns to this question of democratic power. First, it discusses in detail the legal regimes that relate to this controversy. The central point is that while many observers tout the rise of new corporate governance models, some linked with the work of non- or intergovernmental organizations (see Hemphill 2004; European Corporate Governance Institute 2007), the Marlin case illustrates some of the severe shortcomings of such models.

A Note on Method The research for this study included primary interviews with key figures in Washington, DC, Guatemala City, and San Marcos, Guatemala, between April and September 2006. The authors spoke with a representative of Glamis Gold, top officials in the Guatemalan Mining and Energy Ministry, a senior specialist in the Ombudsman Section of the Compliance Advisor Ombudsman (CAO) of the IFC, a senior policy adviser at Oxfam America, a former staffer of the Bank Information Center, a specialist at the Guatemalan Human Rights Ombudsman’s Office, legal and program staffers at MadreSelva and the Guatemalan environmental law organization CALAS, leaders of a Mayan human rights organization, community leaders in the immediate vicinity of the mine, and Bishop Ramazzini of the San Marcos Diocese. In addition to interviews, one member of the research team conducted participant observation over the course of several days in August 2006 at a community consultation on a proposed mining project in Santa Eulalia, Huehuetenango, Guatemala. Concern for the safety of some of these individuals and university human subjects restrictions preclude mentioning them by name or other identifiable attributes.

WHY MARLIN MATTERS Many sources agree on the extent of the misery afflicting highland Guatemala. According to the World Bank, 56 percent of the Guatemalan population lives in poverty, and 16 percent of these people live in extreme poverty. Poverty is concentrated in rural and indigenous areas of the country, and San Marcos, the department where the Marlin mine

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is located, is one of the most economically desperate regions. These conditions are manifested in high levels of childhood mortality, illiteracy, and other social problems (World Bank Group 2003). While sources agree that these conditions are deplorable, however, agreement on solutions is harder to find.

Commentary on globalization and the mix of promise and perils it offers these communities tends to fall into two broad camps. Some observers have trumpeted the spread of liberal democracy, market relations, and other supporting structures that make possible the evergreater penetration of global capitalism into the world’s poorest corners, suggesting that these tools may make possible the amelioration of poverty and exclusion that have plagued places like the Guatemalan highlands for centuries (Bhagwati 2004; Friedman 2005). A second group of commentators suggests, however, that globalization as we know it may only exacerbate power differences between global haves and have-nots, and that development projects and rule-of-law reforms may only further cement the subordinate position of the highland Maya.

In recent years, sharp critiques have called attention to the failures of “development,” accusing the multilateral funding agencies like the World Bank, and the national governments that embrace shortsighted development projects, of deepening the exploitation, rather than ameliorating the poverty, of communities of the global South (Escobar 1995; Ferguson 1994, 2006; Crush 1995). Indeed, such critics argue, global “development” itself is an industry that often manufactures poverty to “solve” it and then fails to do so, justifying further intervention in the lives of local communities.

Of course, reality is more complicated than either of these highly politicized positions would permit, and neither the “global” nor the “local” alone can offer an answer to poverty. As Roger Plant argues, the reality of most indigenous peoples’ relationship to the economy suggests that while purely local “community development” strategies, in which indigenous communities define their own independent development paths, are inherently appealing, they cannot purport to solve the broader problems of structural exclusion that plague such communities; nor can they alone represent “the” answer when so many indigenous peoples now live and work outside their communities of origin (Plant 1998). In short, some mix of local and global development strategies will be necessary to tackle poverty; some measure of accountability and meaningful oversight is necessary to ensure that policy interventions do not result in needless death and devastation, as they did in the case of the Chixoy Dam. Shalini Randeria (2003) describes the interplay between state law, transnational commercial law, “protolegal” practices at the World Bank, international treaties, and the lawlike demands made by transnational

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activist campaigns as “glocalization.” Indeed, as many scholars writing on interlegality have emphasized (Santos 1987; Merry 1988), far from being discrete and contrasting blocks of jurisprudence, these fields and forums overlap, and are in many ways mutually constitutive, indeterminate, and constantly shifting. It is helpful to understand the Marlin case as occurring not so much amid a plurality of distinct legal orders, but rather through a kaleidoscope of shifting and combining forms (Santos and García 2001).

In Guatemala in the neoliberal era, Rachel Sieder argues, the communities engaged in resistance struggles against mining and other development schemes are crafting their own bottom-up form of globalization, forming transnational alliances for human rights campaigning and lodging claims in regional courts (Sieder 2006). Randeria makes a similar point regarding Indian cases, showing how counterhegemonic groups are able to articulate their own novel, lawlike claims. Yet just as such groups benefit in some ways from the spread of legalities attendant to globalization, such as the vast expansion of structures and institutions preoccupied with human rights, they are also challenged by the frameworks that such institutions use for understanding rights, as Charles Hale has argued (Hale 2005). The global discourses of rights are slippery, neither inherently liberating nor inherently confining.

It is undoubtedly true that the proliferation of legal forums makes new tools available to civil society groups that might previously have lacked access to audiences beyond the nation-state. At the same time, it should be emphasized that this proliferation is not always a boon to counterhegemonic efforts. Indeed, the very overlaps and focal shifts it facilitates—the ease with which the viewer can rotate the kaleidoscope to create, using a given set of elements, an entirely new pattern—enable powerful actors to evade accountability. In the Marlin case, “cunning states” (Randeria 2003) pled eroded sovereignty in order more readily to facilitate alliances with political elites. This behavior, along with that of transnational corporations, international financial institutions, and others, reveals that the proliferation of lawlike forms may sometimes offer more opportunities for obfuscation than emancipation.

Given these factors, this study concludes that there is no escaping the need for engagement in democratic politics to determine questions of resource allocation, environmental stewardship, and community participation. However fragile such processes may be in many states, enacting regulatory structures that circumvent the state or evade its ultimate responsibility in ensuring democratic procedures is a perilous task that may ultimately prove counterproductive. The very proliferation of lawlike instruments and institutions may in some ways delegitimate the process of politics itself, substituting the presence of legal codes for the process of democratic engagement. As Randeria argues,

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the prescribed goal of “good governance” entails restructuring the state to ensure the “reliability of its institutional framework” and “the predictability of its rules and policies and the consistency with which they are applied” (World Bank 1997, 4–5). The policies and rules themselves, however, are insulated from public deliberation and parliamentary decisionmaking resulting in a democracy without choices (Krastev 2002). (Randeria 2003, 324)

The Marlin mine case demonstrates the risks of relying on this superficial appearance of participation without robust and legitimate engagement in decisionmaking procedures.

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Analysis of the four legal regimes that pertain to the regulation of the Marlin mine explores these issues in detail.

Guatemalan Mining Laws Guatemala’s laws governing mining are a case study in the oft-mentioned “race to the bottom” of contemporary globalization. In order to attract foreign investment, they have become weaker, not stronger, over time. Since 1510, revisions to these laws have oscillated between attempts to promote and to restrict mining (PDH 2005, 15; for a detailed history, see Solano 2005). The current mining law represents in many ways a historic low. Drafted in 1997, it has been widely criticized for going too far in creating incentives for investment without assurances that the country itself will reap substantial dividends. For example, the law reverses previous prohibitions on 100 percent foreign-owned mining operations and establishes the lowest royalty rates in the country’s history (PDH 2005, 15).8 It also implements a series of tax exemptions for mining companies, which add up to a minimal tax burden for mining corporations.9 At the same time, the present law continues a tradition of weak and unenforceable protections for the environment and public health, without mechanisms for community participation in decisionmaking.10 As regards the environment, numerous deficiencies have been criticized in this law. First, the law requires that mining companies present an environmental impact study to the National Commission on the Environment without providing specific instruction as to what such a study must contain. Environmental authorities are granted 30 days to review and approve the study; there is no provision for the extension of this time period, and, according to the text of the law, if the case has not been resolved in the 30-day period, approval is automatically granted: “Such

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study . . . will be resolved within thirty days. After this time and not being resolved, it will be taken as accepted” (Congreso de la República de Guatemala 1999). Critics of the law assert that 30 days does not constitute a reasonable amount of time for the necessary detailed review, particularly considering that the government offices in charge of carrying out environmental oversight lack the capacity and funding to exercise a meaningful oversight role in any time period, let alone such a tight response time.

Moreover, even in cases in which the Ministry of the Environment has ordered the closure of corporate operations, the government has failed to enforce these decisions. The most notable case is that of Duke Energy, which the Guatemalan government ordered to close its electric plant in December 2003 because of high levels of noise pollution. Duke chose to ignore the order and, as of this writing, the plant continues to operate (Morales 2006; Ramírez 2003). This calls into question the power of the local authorities to take action against foreign corporations on environmental grounds.

Local Participation Guatemalan mining law has never satisfactorily addressed the question of local communities’ participation in decisions regarding their own development. Such a right has been internationally recognized for indigenous communities in Convention 169 of the International Labor Organization. No implementing legislation has been passed in Guatemala to incorporate ILO 169 into national law, however, and while the Guatemalan state is legally bound by this convention, national law at this point has no clear legal mechanism through which violations may be prosecuted. Recent reforms intended to decentralize decisionmaking have begun to incorporate the concept of consultations into national law, but in an incoherent manner, creating a climate of confusion and contradiction and a vacuum of legal authority.11 At present, Guatemalan law contemplates at least five vehicles for community consultation, from national referendums on “political decisions of special transcendence” to plebiscites convened by local authorities in response to expressions of concern by residents. Yet no clear definition exists of when each type of consultation should be applied.

On the question of mining, this lack of specificity becomes particularly problematic: while the constitution itself establishes in article 121 the national state’s ownership of subsoil resources, and in article 125 its responsibility to exploit these in the public interest, laws regarding decentralization and municipal autonomy permit consultative processes on such matters as local populations deem relevant without specifically limiting these to matters within municipal government purview. This

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leads to legitimate confusion over the limits to local decisionmaking authority. While opponents of mining assert that populations have complied with the terms of laws regarding local consultation, the Ministry of Energy and Mines considers the exploitation of subsoil resources beyond the jurisdiction of local communities, and therefore deems these processes legally irrelevant (Gálvez Sinibaldi 2006).

Given the lack of a national law on consultations, both arguments would appear to have merit. On the one hand, the mining law clearly establishes that such resources are to be regulated by national authorities in consultation with local development councils. While the constitution mandates municipal autonomy, it is not absolute but administrative (see art. 253), and subsoil resources are established in article 121 as property of the national state, not of each municipality. At the same time, laws governing consultative processes allow referendums on virtually any issue of concern to the citizenry and establish conditions under which the results of these processes are considered binding. It would appear that in at least some of the mining consultations that have resulted in overwhelming rejection of mining, such conditions have been fulfilled. Absent a national law regulating participation processes, the question of whether such referendums are legally binding ultimately rests on which body of law one considers most convenient to cite. The Guatemalan Constitutional Court recently declared the community-run consultation in Sipacapa nonbinding (Sieder 2006; Pérez 2007). The court’s ruling, while casting a definitive judgment on the particular consultation in question, did little to clarify the broader issue of how consultations can legally proceed; it merely stated that clearer rules ought to be established.

This confusion about rights to participate and the limitations to such rights becomes all the more complex when the communities in question are indigenous. While Guatemala’s constitution recognizes the nation as “pluricultural” and calls, in article 70, for the creation of a specific law to regulate the participation and protection of indigenous peoples, this void has never been filled; prescriptions on indigenous rights in the 1996 Peace Accords foundered when, in 1999, the electorate rejected a package of constitutional reforms that would have implemented key provisions governing indigenous decisionmaking.

While the Municipal Code attempts to respect “the particular standards of the customs and traditions” of indigenous groups (which would presumably include consensus-based decisionmaking, including voting by show of hands), it establishes a higher standard of participation for such votes to be considered binding (50 percent of registered voters instead of 20 percent) (Congreso de La República de Guatemala 2002b).12 This provision has been denounced by some as racist (Madre Selva 2006). Why, they ask, should indigenous communities be subject

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to a more rigorous standard than other communities? Furthermore, the lack of clear national directives on indigenous decisionmaking makes it easy for mining advocates to dismiss such processes as illegitimate or compromised because they do not adhere to Western standards, such as secret balloting (Schenk 2006; see also Business Wire 2005). They maintain this even though indigenous communities have used such decisionmaking practices for centuries and their right to do so is protected under national and international law. One such consultation was observed in the municipality of Santa Eulalia, Hueheutenango in August 2006; its integral importance as a traditional mode of indigenous selfgovernance was notable.

International Law International law might appear to be a more promising venue for rights enforcement, for a number of reasons. First, considerably more attention to indigenous participation has been paid at the international level, most clearly in International Labour Organization’s Indigenous and Tribal Peoples Convention (ILO 169). Second, international courts—in this case the Inter-American Court of Human Rights—have sanctioned the Guatemalan state for human rights violations in the recent past.

Although both the provisions of ILO 169 and the forum of the IACHR provide powerful campaigning tools for rights advocates, the Marlin case suggests that just as in national law, the beauty of these institutions lies in the eyes of the beholder. In interviews, both mining advocates and adversaries invoked these international legal instruments to defend their positions. In this sense, the role played by such institutions is more ambiguous than some rights defenders maintain.

ILO Convention 169 ILO 169 is the principal source of international law relevant to the mining controversy in Guatemala. The ILO adopted this convention in 1989 as an updated version of the 1957 Indigenous and Tribal Peoples Convention, which had fallen out of favor because of its assimilationist attitude toward indigenous peoples (Schulting 1997). On its face, the convention offers many important rights and protective measures to indigenous populations, many of which are specifically relevant to the effects of extractive industries. Article 4, for example, references the necessity of special safeguards for the environment of indigenous peoples, and article 5 demands recognition and protection of “the social, cultural, religious and spiritual values” of indigenous peoples (ILO 1989).

In addition to these broad declarations, the convention contains specific provisions relating to indigenous participation and development

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projects. One of the most important mandates that governments carry out consultations with indigenous peoples when national policies or decisions will affect them. Article 15 requires the safeguarding of the natural resources of indigenous peoples’ lands and states that governments must “establish or maintain procedures through which they shall consult these peoples . . . before undertaking or permitting any programmes for the exploration or exploitation of . . . resources pertaining to their lands.”

Article 7 declares indigenous peoples’ “right to decide their own priorities for the process of development” and to “participate in the formulation, implementation, and evaluation of plans and programmes for national and regional development which may affect them directly.”

Taken as a whole, these articles seem to mandate the state’s responsibility to create a comprehensive scheme for the protection of indigenous peoples’ rights through locally appropriate consultations. Indeed, Maya communities in Guatemala have cited ILO 169 in support of municipal-level, community-organized consultations and referendums on the topic of mining (Sieder 2006). Indigenous groups elsewhere in the Americas have relied on the convention in their legal battles in national courts against extractive industry development projects.13 Lee Swepston articulates the sense of optimism that the convention generated, arguing that “the new convention has taken a major step toward providing positive protection for [indigenous] groups at the international level, and that it considerably advances international law on this subject” (Swepston 1990, 678).

Still, there are a number of reasons why ILO 169 has failed to deliver on such promises in Guatemala. Although the country ratified the convention in 1996 as part of the peace process, it was never implemented into national law. The Guatemalan Constitution declares the preeminence of ratified international treaties and conventions over national law in matters of human rights (Republic of Guatemala 1993), which would seem to make clear the government’s responsibility to uphold the convention even in the absence of specific implementing legislation. However, the Constitutional Court has failed to clarify this in Guatemalan jurisprudence. It therefore remains unclear whether ILO 169 should be regarded as superior, equal to, or below the level of the national constitution (Sieder 2007). In addition, it remains unclear what national body should be the authority on proper implementation of ILO 169 (Sacalxot 2006).

This dynamic is dramatically illustrated by the Marlin case, in which the issue of consultation has been central to the controversy surrounding the mine. Though ILO 169 is binding only on state signatories, a consultation process was required for Glamis to comply with the regulations of the IFC (Montana Exploradora 2004). Dissatisfaction with these processes led residents of Sipacapa, with the help of MadreSelva,

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to file a complaint with the IFC’s Ombudsman, which released its assessment of the complaint in September 2005 (CAO 2005). The topic of consultation prompted some of the most critical findings in the report, revealing shortcomings on the part of both the Guatemalan government and the mining company.

The most serious fault highlighted by the report is the Guatemalan government’s failure to implement ILO 169 in its national legal framework. According to the findings, “national mining regulations provide no guidance on how project developers should seek approval from local people for either their exploration or exploitation activities” (CAO 2005, 32). The report also states that it found no evidence indicating “whether or not the government of Guatemala informed or consulted with local people or their leaders prior to granting of the exploration license for the Marlin area” (CAO 2005, 28). Furthermore, although the Guatemalan Ministry of the Environment and Natural Resources regulations require the company to submit an Environmental and Social Impact Assessment (ESIA) document, the CAO report details significant flaws in this process. For example, the report states, “public disclosures about project impacts and potential risks prepared by the company— including the ESIA—were highly technical and did not at the time have sufficient information to allow for an informed view on the likely adverse impacts of the project” (CAO 2005, 31). The report also found that the Guatemalan government “did not hold any public consultations with local people about the ESIA” (CAO 2005, 30).

ILO 169 states clearly that the responsibility for its fulfillment rests with the state. In the legal vacuum created by the government’s failure to establish a process for consultation with indigenous communities, however, Glamis Gold was left unilaterally to decide whom to consult and how to consult with them.14 The example of Glamis Gold in San Miguel Ixtahuacán and Sipacapa illustrates the pitfalls of corporatedirected consultation processes: even if the company had consulted every resident of the region, the knowledge that such consultations were carried out by Glamis itself led many observers to question their legitimacy.15 In addition to the failures to implement ILO 169 in Guatemala, however, the text of the convention itself is vague, leaving wide swaths of its content open to interpretation. The convention does not contain instructions for how consultations should be implemented or a specific definition of what consultation entails, but simply states that “consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures” (ILO 1989, Art. 6.2). While this vague wording allows states to implement consultations differently according to varying circumstances, it

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provides no way of measuring whether consultation procedures are adequate. Moreover, the stated objective of “agreement or consent” raises the question of what should happen if indigenous peoples do not consent to a policy or project.

Indeed, a manual on ILO 169 created by the ILO itself unequivocally states that “indigenous and tribal peoples do not have the right under the convention to veto exploitation” of natural resources on their lands.

Rather, “they can give reasons why there should be no extraction or exploration” and “use their rights as bargaining tools in negotiations with the company.” Quite optimistically, the manual suggests that “through these negotiations, indigenous and tribal peoples can persuade companies to adapt their techniques to minimize environmental damage, and to restore the environment afterwards” (Project to Promote ILO Policy on Indigenous and Tribal Peoples 2003, 40). Under this interpretation of the convention, indigenous peoples have a right to provide input that would ideally influence the development of a project, but ultimately have no decisionmaking authority. The convention gives indigenous peoples few, if any, substantial rights in cases of intractable disagreement. Furthermore, the convention’s conception of consultation does not address the enormous power differential between indigenous peoples and the governments, multinational corporations (MNCs), and international financial institutions with whom they are to engage in “negotiations.”

Despite its weaknesses, ILO 169 has become a rallying point for Guatemalan indigenous communities and others involved in campaigns against mining projects, and has been cited as a legal basis for community-led consultations on the topic of mining. The most prominent of these popular consultations took place in June 2005 in 13 communities in Sipacapa, resulting in an overwhelming rejection of mining. Of an estimated 44 percent of registered voters in the municipality, 98 percent voted against mining (Castagnino 2006, 20).

Although their legal validity is a matter of interpretation and it is uncertain whether they would be upheld in a court of law, similar consultations have been held throughout Guatemala. An example took place in the municipality of Santa Eulalia, Hueheutenango, on August 29, 2006, which involved 79 separate communities and presented a final vote tally of 18,089 opposed to metal mining, 5 in favor, and 62 abstentions (Castillo 2006). According to the Guatemalan newspaper Prensa Libre, during the summer of 2006, similar consultations took place in San Juan Atitlán, Colotenango, Santiago Chimaltenango, Concepción Huista, and Todos Santos Cuchumatán, with “massive” rejection of mining at all of the listed consultations (Castillo and Castellanos 2006).

Government reactions to these popular consultations have been mixed. Martín Sacalxot of the Human Rights Procurator’s office stated that the consultations are legitimate within the Guatemalan legal frame-

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work (Sacalxot 2006). The Ministry of Energy and Mines, as noted above, considers the popular consultations irrelevant. Representatives of Glamis also questioned the legitimacy of voting by a show of hands, stating that the lopsided vote totals suggested manipulation of or pressure on the electorate by antimining groups (Schenk 2006). Moreover, as the Guatemalan Ministry of Energy and Mines asserted, ILO 169 even contemplates the forcible removal of communities (ILO 1989, Art. 16).

Speaking on this point, the ministry’s general director, Alfredo Gálvez Sinibaldi, mentioned the infamous case of the Chixoy Dam. Rather than interpreting ILO 169 as unequivocally defending indigenous peoples’ rights to participate in their own development, Gálvez invoked it as supporting the state’s right to resort to such measures as forcible relocation when deemed necessary (Gálvez Sinibaldi 2006).

Glamis Gold has also invoked ILO 169 to legitimate its actions. The company’s sustainable development manager, James Schenk, has stated that the company believes that its consultation procedures fulfilled the requirements of the convention (Schenk 2006).

The Inter-American Human Rights System Mining opponents in Sipacapa have taken their case to the Inter-American Commission on Human Rights in Washington, and hope it will eventually be heard by the Inter-American Court of Human Rights in San José, Costa Rica. The court serves as a meaningful source of support for victims of human rights abuses in the Americas and has successfully sanctioned the Guatemalan state for acts of repression, including cases related to the disastrous Chixoy Dam project. For these reasons, lawyers involved in the Marlin mine case saw it as a more hopeful and realistic means of defending the rights of communities than national law. For communities involved in these struggles, having recourse to these international institutions has important symbolic and political value.

At the same time, however, the Inter-American system has numerous limitations. The commission and court can hear cases only after national legal remedies are deemed to have been exhausted. Furthermore, the court is empowered only to hear cases against national states, not multinational corporations, and it can only issue judgments in the context of individual human rights violations, as opposed to ordering the kinds of broad-based reforms that plaintiffs may actually wish to see.

While a negative judgment might prompt a state voluntarily to reform its mining policies or practices, the very “race to the bottom” logic identified above serves as a powerful disincentive for structural reforms stemming from a court case of this sort.

Although the court has recently ruled in favor of other indigenous groups threatened by government concessions to multinationals, it has

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so far shied away from ruling on the question of consultations. The commission has reaffirmed the right to consultation (Anaya 2005), but jurisprudence is still far from settling the nature of this required consultation. The case touted as a landmark for indigenous rights is that of the Mayagna (Sumo) Awas Tingni Community vs. Nicaragua of 2001, commonly known as the Awas Tingni case. The court ruled in favor of the indigenous group, whose lawyers argued that the state of Nicaragua should have respected their collective right to property when it granted a concession to a multinational logging company.16 The court’s ruling recognized the indigenous peoples’ right to collective property based on traditional occupancy of the land rather than land titles. Yet as Hale argues (2005, 2006), the case has in some ways been a Pyrrhic victory, for it has led to ever greater state intervention in the community’s territory. “Whatever the community gains in the final analysis—and it is likely to be substantial,” Hale writes, “the cost will be an unprecedented involvement of the state and of neoliberal development institutions in the community’s internal affairs: regulating the details of the claim, shaping political subjectivities, and reconfiguring internal relations” (Hale 2005, 16).

This court ruling, while undoubtedly historic, does not necessarily strengthen indigenous rights to participate in development decisions. Its relevance to the Marlin case is therefore limited, as the legality of Glamis’s purchase of project lands is not in dispute. Instead, project opponents have argued that although land was obtained through legal transactions, its use for metal mining violates the community’s right to participate in development decisions, not the rights to private or collective property. If the Marlin case were to succeed in the Inter-American system, international legitimation of the community’s claims might yield economic and strategic gains for people in Sipacapa. At this point, however, this institution has not played a key role in settling the larger question of who speaks for whom in development processes.

International Financial Institutions The International Finance Corporation played a major role in the history and governance of the Marlin mine.17 Of the project’s total funding, $45 million comes from the IFC loan, out of a total cost of $254 million; but the institution’s actual influence in the mine is disproportionate. In addition to providing crucial capital, the IFC plays a critical symbolic role in the process. The World Bank Group, by definition, supports projects only when they are deemed to be in the public interest, and bank funding connotes prestige and commands attention in a way that private funding cannot. According to the Bank Information Center, international financial institutions (IFIs)

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are the largest source of development finance in the world, typically lending between US$30 to $40 billion to low- and middle-income countries each year. The IFIs, and in particular the World Bank, are a primary source of development knowledge, publishing research that frames the debate on development issues. Other donor institutions often take their lead from the World Bank and the IMF, thus amplifying the impact of those institutions’ lending approaches and decisions. (Bank Information Center 2007)

The IFC, therefore, is a highly influential voice in decisions about which development projects gain approval and how they are implemented. Companies operating with IFC funds are under contractual obligation to follow any rules that the IFC creates for individual projects.

In this sense, if problems in the crafting and implementation of national law are difficult to address because of perceived challenges to national “competitiveness,” the ability of actors like the IFC to write their own rules for social responsibility would appear to offer a hopeful counterpoint to this “race to the bottom” dynamic.

Furthermore, because IFIs hold the purse strings for large development projects, enforcement of their rules would circumvent weaknesses at the national level; funding, at least in theory, could be revoked in cases where the rules were breached. Though this step is rarely taken, the World Bank does occasionally demonstrate its willingness to do so, as it did in the wake of the Awas Tingni case, in which Nicaragua was charged “with failure to take steps necessary to secure the land rights of the … indigenous community of Awas Tingni and of other Mayagna and Miskito indigenous communities” (Anaya and Williams 2001, 37). “Significantly, the World Bank has conditioned a financial aid package set for Nicaragua on the development by the government of a specific plan to demarcate the traditional lands of the Miskito and Mayagna communities,” Anaya and Williams note. “This was the first time that the World Bank had placed such a condition on an aid package” (2001, 38).

Such hopes are bolstered by recent increases in the IFC’s public commitments to use its power in a socially and environmentally responsible manner. Stung by harsh criticisms that they were funding disasters rather than development, the World Bank and other major lending institutions have created and updated successive generations of “safeguard policies,” extensive documents detailing the circumstances under which a bank should underwrite projects and the standards that should apply over the course of a project. The IFC’s loan for the Marlin mine project was bound by its 1998 policies; the latest set was published in 2006.

The trend in World Bank internal reform was not limited to the adoption of safeguard policies. In 1999 the IFC created the CAO, intended “to provide an accessible and effective mechanism for han-

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dling complaints from persons who are affected (or are likely to be affected) by the social and environmental impacts of IFC- or MIGAsponsored projects” (CAO 2006). The following year, the World Bank Group commissioned an external, independent review of its engagement with the extractive industries sector. The final report, known as the Extractive Industries Review (EIR) (Salim 2003), was issued in December 2003, capping an unusual, large-scale process of research and analysis. Led by a widely respected figure, Emil Salim, former environment minister of Indonesia, the EIR relied on input from a broad range of civil society organizations, academics, bank officials, and other stakeholders.

The Extractive Industries Review set out to answer a fundamental question: “Can extractive industries be a vehicle for poverty alleviation through sustainable development and, if so, is there a role for the World Bank Group to play to achieve this aim?” (Salim 2003, 27). Ultimately, the authors answered both questions in the affirmative, but argued strongly that several major conditions had to be met for the bank to justify investing in extractive industries. Governance, human rights, and social and environmental sustainability all must be respected before the bank could hope to support extractive projects that made a positive contribution to development. Under the status quo, the report asserted frankly, the bank’s support for extractive industries had failed to reduce poverty.

The Marlin project was the first mine to receive IFC financing since the publication of the EIR and the first mining project in Guatemala since the passage of the 1997 law aiming to attract investment. The Guatemalan government and the IFC both envisioned the project as a showcase of profitable and responsible development. In the end, however, the IFC drew criticism in connection with its involvement with the project as fierce as any in its controversial history. The decision to invest in the project alone drew criticism from some quarters. As two observers from the Bank Information Center put it, “One wonders just how the IFC and Glamis could have walked into a postconflict country with profound ethnic, economic, and political divisions in which state and parastate violence is still a very real threat in daily life, without considering the possibility of conflict” (Holt-Giménez and Spang, 2005). The World Bank eventually considered imposing a moratorium on exploratory activity (Inamdar 2006).

The case became notorious in the IFC, and important enough to merit personal attention from the World Bank’s president, Paul Wolfowitz. The bank judged the Marlin case sufficiently difficult and visible to justify a special meeting with NGO representatives from organizations like Oxfam America (Slack 2006). The CAO received a formal complaint in January 2005 from an NGO representing Sipacapa residents, and conducted an investigation and review process. It released an initial report

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in September 2005 and returned twice more to the site before closing the complaint on the basis that neither the company nor the community saw a continuing role for the IFC in facilitating talks between the two sides (Inamdar 2006). The CAO issued a number of formal recommendations that centered on creating the conditions for dialogue and community acceptance of the mine, some of which were implemented, to a degree. Though the overall level of tension remained high, World Bank ultimately disbursed its entire $45 million loan to Glamis as originally planned, without interruption.

The Marlin mine was indeed a showcase for the IFC and the Guatemalan government, but the realities showcased by the project were undoubtedly different from the ones intended. In the end, after all the World Bank’s self-scrutiny and commitments to change, the IFC financed a project that would prove not only to be highly controversial but to replicate exactly the kind of social and environmental concerns criticized in the EIR. The CAO report suggests that no meaningful IFC oversight was ever exercised on the topic of consultation and disclosure or the adequacy of the mandated Environmental and Social Impact Assessment.18 The safeguard policies, if well intentioned, proved to be vague and subject to interpretation. The legal and financial strength of the IFC is indisputable, but to be meaningful in the context of any given development project, it must be coupled with the political will to insist on changes if standards go unmet.

This political will appears to have been lacking in the Marlin case.

When the IFC decided to examine the case, it was not with the primary aim of forcing Glamis, or the communities affected by the mine, to adhere to specific standards. Instead, the emphasis was on fostering “dialogue” between parties already entrenched in positions of mutual distrust. Both sides seemed to expect a definitive judgment from the process. Glamis, of course, was hoping to be exculpated of any alleged misdeeds, and the complainants were hoping that Glamis would be officially sanctioned and forced to alter fundamentally its operations or even withdraw altogether from the project. According to Amar Inamdar, a CAO senior specialist, the CAO’s first report set off a “feeding frenzy” by both sides: all parties seized on the document and scoured it for evidence and arguments that would bolster their respective positions (Inamdar 2006).

Like all other forms of “law” discussed in this study, the report became something of a Rorschach test for people determined to project their own foregone conclusions onto what was tendered as a neutral document. When each side realized that the CAO would not issue the hoped-for definitive judgment and orders, the CAO was eventually forced to withdraw, as both parties made it clear that its participation was no longer welcome.

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According to both Inamdar and James Schenk, Glamis did institute some new policies in response to the report in an attempt to address both environmental and social concerns. After the report, Glamis adopted the Voluntary Principles on Security and Human Rights. On the environmental front, Glamis instituted a new water-monitoring policy that Inamdar characterizes as more “proactive” and “inclusive.” These changes, however, have yet to address the long-term mistrust between the company and the communities. Inamdar hopes that a new Glamisfunded initiative, whereby community members are invited to engage in environmental monitoring activities, will be a “wedge” that will allow the company to engage with the public and build trust, but these outcomes are not yet in evidence.

The Marlin complaint prompted “deep reflection” in the CAO over how the office conducts its operations, Inamdar says.19 The ombudsman was drawn too deeply into technical aspects of the controversy, he maintains, and the CAO should design a credible way to resolve those complaints. Beyond the inner workings of the CAO, however, lie fundamental questions about how the IFC operates in countries where the rule of law is weak. The IFC is, to a large extent, dependent on the national host government to provide leadership on crucial governance issues. The IFC depends on the corporation to draw the boundaries around communities that are “project-affected,” and any communities that fall outside those lines depend on their government to offer them a voice in the decisionmaking process.

The IFC, with all its safeguard policies and procedures, can only do so much to determine questions of authenticity and representation. Who should have a voice in the decision? Who speaks for a community?

These questions are, to an extent, amenable to technocratic solutions, but basically represent a fundamental question for democracy that is far outside the IFC’s purview. The framework in which local communities participate in the initial decision to proceed with a project is an issue the IFC is only beginning to consider, suggests Inamdar. The World Bank has heretofore depended on national law to settle that question; but as the Marlin case suggests, this may simply reinforce rather than redress the “race to the bottom” dynamic. As this case study reveals, structures that promise accountability yet are not moored to a solid and enforceable framework in national law may actually exacerbate rather than alleviate existing tensions.

Corporate Social Responsibility Corporate Social Responsibility (CSR) represents another form of regulation that might seem to constrain the behavior of multinational corporations and offer another layer of protection to vulnerable communities

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facing large-scale development projects that threaten to encroach on traditional communal lands. Yet the research for this study suggests that this quasi-legal form of regulation ultimately falls far short of its promise as a sensible, flexible, and modern way to produce “win-win” developmental outcomes. Touted by its proponents as a way to achieve regulation while avoiding the disadvantages of a punitive, top-down model of law enforcement, CSR is decried by its critics as a farcical form of “greenwashing,” nothing but old wine in new bottles, as ineffective, irrelevant, or even actively harmful to the communities it purports to serve.

In the past 15 years, CSR has become a major part of the linguistic landscape of MNCs and their actions around the globe. The umbrella term comprises a wide variety of initiatives, agreements, and organizations, but in its broadest sense refers to voluntary self-regulation, undertaken unilaterally by a single company, in concert with government or NGOs, or sectorwide. Charitable or other activities not directly related to corporate profits are nothing new, of course, but the modern CSR movement is notable both for its scope and for its role in changing global perceptions of appropriate or acceptable behavior for MNCs. No more the capitalist robber barons of old, the argument goes, corporations use CSR as part of a newer, kinder, more responsible capitalism that allows brisk efficiency and profits to blossom without running roughshod over the rights and interests of the world’s most vulnerable people.

Many mining firms participate in the the United Nations Global Compact, and half take part in the Global Reporting Initiative, a multistakeholder organization that lets companies report on their environmental and social bottom lines in addition to traditional financial reporting. Glamis takes part in neither initiative, but it does have its own forms of engagement with CSR principles. In 2004 it created the Fundación Sierra Madre, with the help of the international group Citizens Development Corps. The foundation provides, among other things, some health and education services to citizens of the local communities affected by the Marlin project. Glamis’s sustainable development manager, Schenk, maintains that Glamis’s vision of CSR is a way of achieving true long-term development: “We want the project to be a means, not an end.” CSR does not mean charitable “donations,” he argues, but instead “being part of a community” (Schenk 2006).

Glamis is committed to funding the foundation while the mine is still in operation, according to Schenk, and would ultimately like to make it self-sufficient. Schenk agrees with Guatemalan activist groups that the state is not playing its needed role, and argues that Glamis is capable of providing some of the things the state is not able or willing to provide. A representative of a Mayan rights organization, however, sharply criticizes the foundation’s efforts. It has financed small, insignif-

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icant projects with the aim of pacifying the population and putting the people “to sleep,” he charges, but stood by and did nothing to help people who were dying slowly from the poisonous chemicals the mining activity releases (Maya representative 2005).

As this case reveals, CSR may benefit some communities some of the time, but such help is by definition voluntary, and thus many companies do not self-regulate, either fully or at all. The World Bank itself has voiced criticism of CSR, charging that “despite widespread rhetoric, impact is still patchy; in practice, many companies’ implementation [of CSR strategies] is shallow and fragmented” (cited in Christian Aid 2004, 8). When companies do participate in CSR activities, there is often no mechanism for accountability, leaving companies vulnerable to charges that their voluntary initiatives are mere propaganda (Shamir 2004). Even when companies undertake voluntary initiatives that may seem laudable in the abstract, these may be compromised because of the way they are viewed by the communities and intended beneficiaries. Communities may view all corporate overtures with extreme mistrust, suspecting that their effects will be negligible or that the company may be using CSR as a way to divert attention from the real and serious problems that their activities generate.

Peter Newell notes that CSR does nothing to alter the fundamental relationship between companies and communities: “Clearly . . . power inequalities have important implication for the type of accountability mechanism that can realistically be constructed between companies and communities” (Newell 2005, 543). “CSR is founded on a notion of antipolitics” (2005, 556). Insistence on self-regulation overlooks the reality that corporations are generally much more powerful than the communities they affect. The decision to allow companies to self-regulate is a fundamentally political one, but CSR permits companies to project at least the illusion that they are behaving according to the dictates of common sense, generosity, and “good citizenship.”

Ultimately, CSR does not promote fundamental changes in societies that favor increased political participation and stronger democracy; indeed, it may actively work against such changes, cloaking the worst effects of corporate exploitation and distracting beneficiaries from the need to push for deeper changes. The critical question is whether voluntary self-regulation functions as a complement or a competitor to mandatory regulation by the state, if indeed self-regulation can be said to play any meaningful role beyond that of window dressing.

CONCLUSIONS The Marlin mine typifies both the social and economic structures that have been in place since the Conquest and the newly emerging kinds of

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encounters between global corporations and local communities that will define the twenty-first century. The iconic image of the poor Latin American peasant sitting atop a mountain of gold, ironically unable to benefit from the wealth of natural resources at hand, unfortunately still seems apt. Yet the legal terrain on which both indigenous peasants and corporate moguls are attempting to find their footing has also undeniably shifted. Globalization has provided poor communities and the rights advocates who defend them with myriad legal options for protecting themselves from the threat of exploitation by multinational corporations.

This article has used the Marlin mine as a case study to argue that these legal tools, although seemingly progressive in some cases, are in the end an ambiguous response to the needs of indigenous communities facing encroachment on their traditional territories by MNCs seeking profit.

This ambiguity has at least two dimensions. The first dimension concerns the clarity and effectiveness of the legal instruments in question. Of the four legal orders this study has examined, none has the combination of coherence, political will, and ability to ensure compliance that would make for a dependable source of rights protection.

Guatemalan national law provides some opportunities for environmental regulation and local input, but ultimately the law cedes true decisionmaking authority on all relevant points to a government agency that is concerned above all with facilitating mining and economic activity.

International law opens spaces for aggrieved parties to state their case in a court of law, where important and tangible benefits have been secured for indigenous peoples in a few cases. This approach to legal regulation, however, is cumbersome and sometimes effectively impossible for communities to pursue; and it offers, in most cases, only a post hoc remedy, as opposed to forward-looking governance.

Perhaps more important, international law has not yet resolved the crucial question of consultation, featured so prominently in the Marlin case. International financial institutions like the IFC clearly have vast power to shape development outcomes, recently have demonstrated a significant awareness of the social and ethical implications of the projects they support, and in some quarters have expressed commitments to wielding their authority conscientiously. To date, however, this selfawareness and these good intentions have not translated into demonstrably wiser development decisions on the ground.

Corporate social responsibility, a hallmark of the new global governance regime, has led to tangible benefits for communities where none might otherwise exist. CSR’s voluntary nature, however, means that these initiatives will be undertaken only when corporations choose, and will not be systematically provided. Furthermore, communities may view corporate-led efforts with suspicion, thwarting the objective of improved corporate-community relations.

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The second dimension of ambiguity in the new global legal terrain is more fundamental. Those practitioners taking a technocratic approach to development practice argue that we can learn from bad development outcomes, apply their lessons, and get it right the next time. National and international laws can be strengthened, refined, and clarified. IFIs can fine-tune their policies and adjust their approach incrementally. CSR is a quickly growing and changing field; corporations can learn from others’ successes and emulate their best practices. We see in the Marlin mine, however, reason to be skeptical of this technocratic mindset. Laws undoubtedly can be improved, but it is doubtful that this sort of revision will resolve the more fundamental questions at stake. Especially in the climate of mutual suspicion that currently exists between indigenous communities worldwide and MNCs and extractive development projects, core community concerns are unlikely to be allayed by a policy statement by the IFC or a CSR initiative from a corporation like Glamis Gold. The questions of who decides what development projects proceed, how they proceed, and who benefits will not be answered solely in a court of law ruling on isolated cases. They can be resolved only through the political give and take of the democratic process, in which the role of the state cannot be played by private actors.

The issues raised by the Marlin case continue to play out in Guatemala. Community mobilization has spread to other areas of the country, such as the municipality of Concepción Tutuapa in San Marcos.

This community held its own popular consultation on February 13, 2007, resulting in a unanimous statement rejecting future mining projects (Municipalidad de Concepción Tutuapa 2007). A nickel-mining project conducted by the Canadian mining conglomerate Skye Resources/INCO in the municipality of El Estor, near Lake Izabal, has led to more dramatic conflict between indigenous communities and corporate and state authorities due to disputes over land rights. In September 2006, local Maya-Q’eqchi’ communities occupied land granted to the mining company, which they claim as their ancestral heritage. The occupation led to a series of forced evictions in November. Acts of police violence during the evictions were answered by the arson of buildings owned by the mining company (Defensoria Q’eqchi’ 2006).

The dynamics identified in the Marlin mine case are sadly in evidence in these cases and others like them around the world. Meanwhile, as the Guatemalan government debates how to revise its mining code and as the IFC ponders how to apply the “lessons learned” from the Marlin case, extraction continues at the mine in San Marcos.

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NOTES Unless otherwise noted, all translations are by the authors.

1. Glamis Gold was subsequently acquired by the Canadian company Goldcorp. Given that the bulk of this research and the events in question took place before the merger, for consistency and clarity, we refer to the company as Glamis.

2. For studies of violence and development in Guatemala, see, for example, Grandin 2004; Robinson 2003; Manz 2004.

3. The Rorschach test is a diagnostic tool used in psychology, in which the person being tested is asked to interpret a series of meaningless inkblots. Many critics of the test consider the interpretation of the subject’s responses to be highly subjective and the test therefore of dubious value.

4. Related cases of conflict over resource exploitation exist elsewhere in the world. For example, conflicts have arisen between corporations and communities involving oil in Nigeria (Frynas 2001) or Sudan (Gagnon and Ryle 2001). The contested Chad-Cameroon pipeline project led to the development of elaborate but ultimately unsuccessful accountability mechanisms (Gould and Winters 2007).

5. The mine overlaps the municipalities of Sipacapa and San Miguel Ixtahuacán. Primary ore deposits and most of the project’s land area fall in San Miguel Ixtahuacán, while processing facilities are located in Sipacapa. Glamis engaged San Miguel Ixtahuacán more closely in corporate-driven consultation and development projects, while the population of Sipacapa was comparatively marginalized and expressed its disillusionment earlier.

6. Eight hundred seventy-three jobs were created for local residents of San Miguel Ixtahuacán and Sipacapa during construction, benefiting 12 percent of local families; when the extraction phase started, at the end of 2005, this number fell to 230 (Castagnino 2006).

7. The subject’s name and the identity of the organization have been omitted, as some opponents have received death threats in connection with speaking out on this case.

8. As a 2001 ECLAC study of mining in the region noted, “In Guatemala, specific taxes on mining are deductible from corporate income tax, while sectoral imports are exempt from taxes and tariff duties on inputs, capital goods, equipment, spare parts and accessories, unless there is also local production” (Sánchez Albavera et al. 2001, 25). Imports are also duty-free (Doan 1998, 1).

9. These specific provisions regarding mining must also be understood as operating in an investment climate in which many foreign corporations are already assessed minimal taxation, if any. In 2005, media reports focused on the fact that Glamis Gold had yet to pay any income tax whatsoever (Sic 2006). Far from an exception, such practices constitute the rule, and are actually legal under the terms of Decreto No. 29-89, Ley de Fomento y Desarrollo de la Actividad Exportadora y de Maquila (Congreso de la República de Guatemala 1998).

In 2006, Glamis Gold voluntarily agreed to begin paying taxes before its period of exemption had expired, after consultations with the Guatemalan government, the World Bank, and the IFC (Glamis Gold 2006). Though this may certainly be cited as an example of positive voluntary action by a corporation in contradic-

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tion to the “race to the bottom” trend, it also fits in with the “depolitization” favored by neoliberalism. Regressive legal structures go unchallenged as state power is subordinated to the goodwill of the private sector.

10. As of this writing, the law governing mining is Decreto No. 48-97, Ley de Minería (Congreso de la República de Guatemala 1999). In June 2008, Guatemala’s Constitutional Court ruled that some elements of this law violated the constitution, yet so far the law has yet to be amended or replaced.

11. Article 26 of the Ley de Consejos de Desarrollo Urbano y Rural establishes that “consultations of Maya, Xinca and Garifuna communities can be carried out through their development council representatives concerning development initiatives undertaken by executive authority, when they directly affect indigenous peoples” (Congreso de la República de Guatemala 2002a). Consultation of indigenous communities is also discussed in Article 65 of the Municipal Code: “When matters arise that particularly affect the rights and interests of indigenous communities, of the municipality or of their own authorities, the Municipal Council will carry out consultations at the request of these communities or indigenous authorities, according to the criteria set by the customs and traditions of the indigenous communities” (Congreso de la República de Guatemala 2002b).

12. Though practices vary by community, many Maya communities traditionally make collective decisions through public meetings, where participants visibly and vocally indicate their support for specific initiatives (Universidad Rafael Landívar 1998). Voting by a show of hands is common.

13. For example, in 1997 the Colombian Constitutional Court ruled in favor of the U’wa people on the basis of the constitution and ILO 169 (Rodríguez-Garavito and Arenas 2005, 252).

14. According to the CAO report, “early in the development process, Montana [Exploradora]’s assessment was that, despite the proximity of the project to communities in Sipacapa, the people of Sipacapa were unlikely to be significantly adversely impacted. Accordingly, proportionately less effort was invested in (a) communicating the impacts; (b) engaging proactively with communities in Sipacapa.” Glamis’s consultation process included the creation of a Community Relations Group (CRG), made up of local residents employed by the mine, to explain its benefits and host informational presentations about the project. Community lists of development priorities were drawn up at the meetings, and the company incorporated some of them into its community relations and development projects. These disclosure and philanthropic projects focused primarily on the area of San Miguel Ixtahuacán, not Sipacapa. The CRG’s ability to address technical concerns relating to the mine was reportedly inadequate, and detailed records of early meetings with community members were not kept (CAO 2005, 31).

15. Other corporations have conducted their own consultation processes.

For instance, Barrick Gold highlights the “community consultation” it has carried out in the controversial Pascua Lama gold mine project on the Chile-Argentina border (Barrick Gold Corporation 2008).

16. Another case, involving the Kichwa people of Sarayaku and the Ecuadorian state over the state’s grant of a concession to an Argentine oil company, is pending.

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17. For an analysis of the World Bank’s involvement in community struggles over mining, see Szablowski 2007.

18. The CAO report states, “the basis on which the IFC determined that the disclosure and consultation practice of the company [Glamis] was adequate—with respect to being both meaningful and culturally appropriate, is not clear. CAO found no record of analysis of company capacity nor of government regulations or capacity to implement regulations. . . . There is no documentation that reflects that any detailed consideration was given to the quality of consultation nor to the rationale in differentiating an approach between San Miguel [Ixtahuacán] and Sipacapa” (CAO 2005, section 2.4.2, emphasis in original). In section 2.2.2.1 the report states, “the basis on which the IFC determined that the ESIA was adequate is not clear . . . no documentation was made available that reflects that any detailed and specific consideration had been given to how the IFC has and will ensure that the project complies with each of the applicable IFC policies and other basic procedural requirements” (CAO 2005).

19. For a summary of “lessons learned” from the Marlin case from the IFC’s point of view, see IFC 2007, 10.

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Anaya, James, and Robert A. Williams, Jr. 2001. The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System. Harvard Human Rights Journal 14: 33–86.

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Barrick Gold Corporation. 2008. Barrick Responds to Pascua-Lama Chain Email. <www.barrick.com/CorporateResponsibility/KeyTopics/PascuaLama/Bar rickRespondsbrtoChainEmail/default.aspx> Accessed February 13, 2008.

Bhagwati, Jagdish. 2004. In Defense of Globalization. Oxford: Oxford University Press.

Business Wire. 2005. Glamis Gold Comments on Proposed Referendum in Guatemala. June 8. <www.findarticles.com/p/articles/mi_m0EIN/is_2005_ June_8/ai_n13804652> Accessed August 29.

Castagnino, Vincent. 2006. Minería de metales y derechos humanos en Guatemala: la Mina Marlin en San Marcos. Report. Guatemala City: Brigadas de Paz Internacionales. May. <www.peacebrigades.org/2068.html?&?&L=1> Accessed October 22, 2008.

Castillo, Mike. 2006. Consulta popular en Santa Eulalia. Prensa Libre, August 31. <www.prensalibre.com/pl/2006/agosto/31/150541.html> Accessed August 28, 2007.

Castillo, Mike, and Amafredo Castellanos. 2006. Votan contra minería. Prensa Libre (Guatemala City), August 30. <www.prensalibre.com/pl/2006/agosto/ 30/150443.html> Accessed August 28, 2007.

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