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14 Apr 2017

Karen Hudlet and Ana Zbona, Business and Human Rights Resource Centre (BHRRC), Apr 2017

Interview with lawyer Pedro Rafael Maldonado Flores (CALAS, Guatemala): “What is truly ‘against development’ is not the work of defenders, but corruption and the cooptation of the state”

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Disponible en español aquí.

BHRRC: Rafael, can you tell us about the current situation in Guatemala and the security of CALAS?

Rafael: As the center for strategic environmental litigation, we have been supporting communities for some 6 years in their opposition to mining projects instigated by companies from the United States of America and Canada. Communities reject these companies’ operations because of their impacts on water and pollution - Guatemala has the surface of approximately 109 000 km2, it’s small - and the mining belt is intimately connected with the sources of groundwater recharge in the country. Seeing this reaction, the companies colluded with the government to bring about the repression of community opposition and of the legal exercise of their rights.

Unfortunately, In Guatemala mining companies have been acting as criminal structures, hand in hand with the government.

In Guatemala we have seen the granting of licenses to companies that have violated human rights, such as the right to water - there is no suspension of such licenses despite this illegality. Unfortunately, mining companies have been acting as criminal structures, hand in hand with the government. For example, 80% of CALAS's work is in Santa Rosa where the criminalisation of HRDs is high: around 150 HRDs have been criminalised since 2011. Moreover, in Garcia vs. Tahoe Resources, a subsidiary of Tahoe Resources of Canada, security guards attempted to assassinate several leaders and seven defenders suffered injuries during the violent suppression of a peaceful protest at the mine. This case is ground-breaking because, in January 2017, litigation was accepted in Canada.

Of the 150 activists who were criminalized by companies or by the State between 2011 and 2014 - all have been acquitted. Our strategy worked: HRDs have been acquitted, so it is proven that they were innocent and that the mining companies have abused their rights. The companies thought that because of attacks, communities and HRDs were going to give up: but we are seeing that if anything, the process of resistance has been strengthened.

BHRRC: Could you describe the attacks on CALAS?

Rafael: CALAS has suffered various attacks and defamation, including the criminalization of Yuri Giovanni Melini Salguero, the organization's director, which has produced psychological damage.

For example, in an article published in 2013, it was alleged that CALAS uses the funds it receives from powerful international entities such as Oxfam and the Norwegian government to foment conflicts in areas where mining and monocultural agriculture takes place. The article, entitled "The Farce of Genocide in Guatemala - Marxist Conspiracy from the Catholic Church", was published by the Foundation against Terrorism, founded by ex-military.

At the same time, the government begun direct processes with embassies, asking them to discontinue our financing. That constituted an attack on our funding. Embassies from Europe have discontinued their donations, but we have continued our work with the support of the churches.

The third stage of attack came when they saw CALAS persevered, despite the attack on our funding. That’s when a defamation campaign was started against me, as a lawyer. Criminal proceedings were initiated against me and I was accused of being a terrorist entity. All this began after the suspension of the license of the mine in La Puya [CALAS has been supporting the communities opposing the mine – Ed.].

The fourth stage of the attack was the most tragic: it was the murder of a member of CALAS. We have no details, but the investigation assumed that he was killed for being part of CALAS.

To summarize, there were four stages of attack on CALAS and HRDs it supports:

  1. Legal attack on the people affected by mining who CALAS supports: 150 community members were criminalized and then acquitted;
  2. Attack on the financing of the institution supporting them: CALAS was attacked prevent it’s continued support;
  3. Legal attack on the staff of the institution: CALAS personnel were personally attacked, I was attacked as a lawyer;
  4. Physical attack on the staff of the institution: member of CALAS personnel was killed.

BHRRC: Can you elaborate a little more on how you perceive the connection between the mining companies and the Guatemalan state?

Rafael: Until April 2015, there was no talk of mining and corruption in Guatemala. Everyone thought the government somehow defended mining, that it put services in place for miners and against the people… we thought there was corruption, but we could not prove it. But between April and June of last year [2016], thanks to the report of the International Commission Against Impunity in Guatemala (CICIG), we know more about the cooptation of the State. In addition, a warrant was issued against GoldCorp mining company for the corruption issue that includes the President, Vice President. This case is all-encompassing, like a “dome”.

BHRRC: Would you say there is access to justice in cases of communities being attacked by companies in Guatemala? How do you seek to bring about remedy for the abuses experienced by you and members of the communities?

Rafael: The response to resistance by communities has been a constant attack of low and increasing intensity against many organizations and HRDs, not just CALAS. In 2017, there are already many HRDs and organizations that have been attacked. The justice system has responded well, but progress is slow. For example, there is a community that announced its opposition to a mega hydroelectric project, that resulted in several leaders being killed in 2014, yet the oral and public debate on this is only taking place now.

Now when we talk about miners being criminals, we have evidence. There are several ongoing criminal cases: one case is against Compañía Minera de Niquél and the security manager who murdered a community leader in Izabal. The other case is against mining exploration managers near La Puya and against the owner of Kappes, Cassiday & Associates, Daniel Kappes.

Two of the mining managers are fugitives from justice. One of them is Eduardo Villacorta, regional manager for Latin America at the Mina Montana de San Marcos. The other is Alberto Rotondo, who is a Peruvian military man who attempted to assassinate people in Santa Rosa. He escaped from house arrest and is a refugee in Lima, but there is an extradition request in his case.

CALAS also initiated proceedings for a case against public officials, including police commissars, who have attacked HRDs. We started have started procceedings for a case in which a defendant was illegally detained. This is going to be the first case of this type: it will be public in May [2017].

BHRRC: What is the vision and strategy of CALAS on this increase of attacks? How do you collaborate with other organizations?

Rafael: Since 2011, an unofficial state policy, which, with the help of companies, has been developed and applied against HRDs, particularly against those protecting water, land and the environment. We have seen charges of terrorism and the criminalisation of protests. The acquittal of the 150 HRDs led to more attacks, concentrated in sectors related to the right to land. This shows that attacks are very organized. We are trying to evidence this unwritten policy.

Since 2011, an unofficial state policy, which, with the help of companies, has been developed and applied against HRDs, particularly against those protecting water, land and the environment. Our strategy is to seek justice for the abuses against HRDs and to set precedents so that they do not happen again. 

What is evident is that companies are part of these structures of criminalization.Wehave started litigation against them and we have several ongoing cases: against Repsa (palm oil), Guatemala's mining (its license has been suspended for environmental crimes) and the case against Alberto Rotondo of Minera San Rafael.

Our strategy is to seek justice for the abuses against HRDs and to set precedents so that they do not happen again. 

BHRRC: What should the governments of the countries where the companies have their headquarters do to ensure that there is no impunity in attacks against HRDs?

Rafael: Extraterritoriality has been the main obstacle, the famous "no convenience" (forum non conveniens). But now, in a landmark decision, the British Columbia Court of Appeals (B.C.) has brought our suit against a Vancouver mining company to court. The British Columbia Court of Appeals has ruled that a lawsuit filed by seven Guatemalan men against Tahoe Resources Inc. may continue in B.C. The ruling invalidates an earlier decision of the Supreme Court of the B.C. Which rejected the case on the basis that Guatemala would be the most appropriate jurisdiction for the plaintiffs' claims.

In a landmark decision, the British Columbia Court of Appeals (B.C.) has brought our suit against a Vancouver mining company to court. Parent companies should be prosecuted as well, because their affiliate is not the only one to blame.

This is the first time that the Canadian Court of Appeals has allowed a lawsuit against a Canadian company for alleged violations. What they must now do is take steps to make mining companies responsible for the abuses and introduce the appropriate laws. That is important because parent companies should be prosecuted as well, because their affiliate is not the only one to blame - they are the ones that ultimately profit.

BHRRC: How can sustainable mining be achieved in Guatemala? Can you give us a good example of cooperation between miners and communities and HRDs?

Rafael: It is very difficult to achieve sustainable mining here because Guatemala is very small and densely populated. For example, the Minera San Rafael is in the center of a village. Historically, indigenous people have been forced to move to the mountains - now, due to mining, they are forced to leave those areas, too. There is also excessive use of water in hydrometallurgy and miners compete in blatant inequality with communities for this resource. Unfortunately, there are no good examples of consultation in Guatemala. There are no mining projects that don’t generate conflicts, so they should not be here.

BHRRC: How does CALAS continue its work despite the attacks it has experienced?

 Rafael: The embassies withdrew their funding - they presented diplomatic arguments for doing so. But resistance movements against extractive activities have a strong Christian basis. This activity is supported by the priests because they see that the attacks are against the poorest and those who suffer most unjustly. For a year, we have continued without funding, but then the foreign churches helped us. The embassies that used to support us - Irish, German - decided not to fund us, so we had to diversify. But through this experience, we became aware of the policy behind the attack on us.

BHRRC: How do you respond to those that say CALAS is against development?

Rafael: Yes, several say that - for example, the President himself said about me that I was an "eco-hysterical". So you can see the level that stigmatization has reached. But what is truly against development is corruption and the co-optation of the state. We always knew the two existed and now we have proof.