2015-2016 Constitutional challenge to Cerro Blanco exploitation licence

In November 2015, a resident of the municipality of Asunción Mita (Department of Jutiapa, Guatemala), filed a petition to the Guatemalan Supreme Court for constitutional protection (amparo) against the Minister of Energy and Mines for failure to terminate the Cerro Blanco exploitation licence in accordance with the Mining Law. The petition was supported by Colectivo Madreselva and sought the involvement of the Office of the Public Prosecutor and the Human Rights Ombudsperson in their roles to investigate breaches in the law and protect human rights.

The petition argued that article 53, clause d, of the Mining Law required the Minister to terminate the mining rights of a company if an exploitation licence had not resulted over a 12-month period in works directed toward the exploitation of the deposit (“los trabajos tendientes a la explotación del yacimiento”). In the case of Cerro Blanco, despite receiving an exploitation licence in 2007, the mining company had not moved to exploit the mineral deposits over several years. Despite this, MEM had not cancelled the exploitation licence. 

The petition went on to explain the consequences of maintenance but not exploitation activities in the mine, particularly rock perforation and diverting of geothermal waters into the River Ostúa. This had resulted in contamination of water courses with high levels of arsenic, affecting drinking water and irrigation of agricultural land, impacting the health and livelihoods of local communities in the vicinity of the mine in Guatemala, but also 4 million Salvadorans who depend on waters joining the River Lempa from the Güija Lake. 

The petition argued that there was no other legal means available to the petitioner to protect his rights as the opposition filed to the Environmental Impact Assessment in 2007 by Colectivo Madreselva had never received a response from the authorities. As a result, the geological problems encountered by Entre Mares and Goldcorp which had led to the suspension of exploitation activity for several years should have resulted in MEM’s cancellation of the licence. The failure to do so had resulted in violations of the rights to life, health, healthy environment, water, and to the protection of the law. The petition argued that the Asunción Mita region was already known for its high levels of arsenic in the environment, but that works at the mine had resulted in a significant increase in the contamination of water courses. 

Despite the evidence presented in the petition, on 13 January 2016, the Supreme Court of Justice rejected the petition on grounds of inadmissibility. The court simply stated without argumentation that the plaintiff had not demonstrated that his rights were personally injured by the alleged violations of constitutional rights and that according to admissibility criteria the plaintiff’s case could not rest on the impact of the rights of the community in general. The fact that as a resident of Asunción Mita the plaintiff was directly affected by contaminated watercourses was not apparently taken into consideration. 

Legislation to protect constitutional rights (amparo) is supposed to be one of key legal means for citizens to secure remedy for abuses or omissions by state officials breaching legal guarantees. However, admissibility criteria are often interpreted narrowly by courts, meaning individuals or communities without access to resources as well as expert legal advice and support may find it extremely difficult to meet admissibility criteria to protect their rights.