Power to the people fivas 2010
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FIVAS (Foreningen for Internasjonale Vannstudier) 2010. Rapporten tar for seg den pågående satsingen på vannkraftutbygging i Guatemala, viser hva som kan gå galt og hva som må tas hensyn til i ...

FIVAS (Foreningen for Internasjonale Vannstudier) 2010. Rapporten tar for seg den pågående satsingen på vannkraftutbygging i Guatemala, viser hva som kan gå galt og hva som må tas hensyn til i fattige land, og land med sårbare grupper slik som urfolk. Rapporten er også tilgjengelig på spansk.

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    Power to the people fivas 2010 Power to the people fivas 2010 Document Transcript

    • Power to the People?Hydropower, indigenous peoples’ rights and popular resistance in Guatemala 1
    • The Association for International Water Studies (FIVAS) is an indepen- dent, non-profit organization that monitors the role of Norwegian aid and companies in the water sector in developing countries. FIVAS seeks to prevent support for policies and projects with adverse environmental and social impacts and to contribute to im- proved decision-making processes. Acknowledgments This report could not have been realized without the help and guidance of many people with knowledge in the area of hydropower, environmental and social impacts, Guatemala and indigenous rights. A study of this kind, looking at actors, interests and power relations in such a complex sector, requires inputs from many different sources. We owe special thanks to everyone in Guatemala who helped us conduct the study. They were tremendously helpful in facilitating access to information, and patient and thoughtful in taking the time to share their views and experiences with us. Thanks also to the Norwegian Embassy in Guatemala, Norwegian Church Aid, Norwe- gian People’s Aid and the Norwegian Solidarity Committee for Latin America (LAG) for valuable contributions along the way. A special thanks to Jody Scholz and Andrew Preston for editing, proofreading and valuable inputs. We dedicate this study to Ronaldo Cardenas, environmental activist and committed defender of the rights of local and indigenous communities, who left this world unex- pectedly on the 2nd of January 2010. Ronaldo helped us in our work with this study, and we will forever appreciate his valuable insights and knowledge. His compassion and dedication to the environment and unwavering commitment to the fight for justice will follow us in our work in the future. The views expressed in this report are those of the authors and do not necessarily represent the official policy or position of interviewees, unless directly cited. Published in September 2010 Design and layout by Odgers Speed Design Authors: Cecilie Hirsch and Miguel Utreras Photos: Cecilie Hirsch Published with the financial support of the Norwegian Agency for Development Cooperation (Norad) Copies can be downloaded from the FIVAS website www.fivas.org Osterhausgate 27, N-0183 Oslo, Norway. Tel: +47 22 98 93 25 email: fivas@fivas.org2
    • Contents1 Introduction 4 1.1 Methodology 62 International Context 7 2.1 Indigenous Rights 7 2.2 Hydropower standards and guidelines 113 The case of Guatemala 14 3.1 Background 14 3.1.1 Geography and people 14 3.1.2 Indigenous Peoples in Guatemala 16 3.1.3 The legacies of the armed conflict 17 3.1.4 Environmental policies 19 3.2 The power sector in Guatemala 22 3.2.1 1990s: An era of privatization 22 3.2.2 Strategic plan for hydropower 24 3.2.3 Actors in the hydropower sector 26 3.2.4 Current developments in the power sector 26 3.2.5 The legacy of Chixoy 29 3.2.6 Legal and institutional framework 30 3.3 Project development: social, environmental and legal aspects 33 3.3.1 Project preparation 33 3.3.2 Benefits for whom? 34 3.3.3 Control of territory 37 3.3.4 Environmental impacts and EIAs 39 3.4 Community resistance and local strategies 45 3.4.1 Energy sovereignty 48 3.4.2 Popular consultations 48 3.4.3 Rio Hondo 49 3.4.4 A break with the liberal model 50 3.4.5 Persecution of leaders and criminalization of social protest 514 Norwegian Context 57 4.1 Norway on energy 58 4.2 Norway on CSR and development cooperation 58 4.3 Clean Energy for Development 59 4.4 Norway and Guatemala 61 4.5 Lessons learnt 675 Conclusions and recommendations 68 Acronyms and abbreviations 71 Meetings 73 3
    • 1 IntroductionThe debate about hydropower has been revitalized in the consideration given to local communities; underestima-context of climate change and the huge unmet needs for tion of and insufficient compensation for social andenergy in many countries. Hydropower projects are being environmental impacts; and unequal cost- and benefit-promoted by developers and financial institutions across sharing1. Groups that are already marginalized are oftenthe world as part of the solution – a low carbon means to highly vulnerable to further deprivation, when subjectedmeet the world’s energy needs. to so-called development projects, such as hydropower.How hydropower development benefits different stake- Hydropower in Norway has been developed under veryholders depends on a range of factors: the local cultural, different conditions to many other countries. Whereaseconomic, political and ecological context; mechanisms Norway has a well-functioning local and national democ-for distribution of benefits; the type and scale of the hy- racy, with a solid legal framework, many countries in thedropower project; the processes before and during plan- Global South have weak or nascent democracies that lackning and construction; how the hydropower plants are the institutional structures necessary to provide for themanaged and by whom; agreements for environmental needs of the poor and marginalized – those who compriseand social mitigation, compensation and resettlement; the the majority of the population in these countries.role of the state, companies and civil society in develop-ment processes, to mention but a few. In many countries, local communities are highly depen- dent on rivers for economic, nutritional, cultural andDams have generated serious and complex environmental spiritual sustenance. Rivers have traditionally providedand socio-economic impacts. Some of the major criti- water for small-scale irrigation and agricultural produc-cisms directed at project developers include inadequate tion, and have also played an important role in meeting the domestic water needs of local communities. Hydropower development affects rivers, ecosystems and the surrounding land. Local people cannot always count on a functioning state and legal framework to protect their rights and safeguard access to the river and sur- rounding lands. At the same time, electricity and profits generated by the hydropower project often do not reach poor local communities, but instead benefit the wealthy, the companies and those able to pay the electricity tariffs. Guatemala has a history of exclusion of indigenous peo- ple. Many of the areas with existing plans for hydropower development are areas inhabited by poor peasants and indigenous groups. Furthermore, Guatemala is a small1 World Commission on Dams (2000) Dams and Development – A New Framework for Decision-making4
    • River in Quiche, Guatemala. Local communities are dependent on rivers for economic, nutritional, cultural and spiritual sustenance.country, with fragile ecosystems and high biodiversity.This has created conflicts in many parts of the country. This study is a contribution to the debate about hydro- power development, indigenous rights and the rights ofConflicts concerning hydropower are nothing new. Since affected communities in the face of development projectslarge-scale hydropower first began to be developed in the in general. The report has four sections. The first provides1960s, there have been conflicts, in which local and indig- a general overview of the current state of hydropowerenous communities have frequently voiced strong opposi- development and includes a presentation of relevanttion. In many instances, their rights have been violated, international standards and trends as well as indigenousincluding their right to use rivers and surrounding lands; rights. The second section of the report presents Guate-their right to decide their own development; their right to mala as a case study, while the third examines relevantparticipate in decision-making processes; their right to be Norwegian policies. In the final section of the report, weconsulted; and their right, as indigenous peoples, to free, put forward our conclusions and recommendations.prior and informed consent. We have chosen Guatemala as a case for various reasons:The World Commission on Dams (WCD) concluded in 1) the potential for hydropower development in theits report from 2000 that respect for indigenous rights country and the environmental context as a small coun-is a prerequisite for sustainable development. The WCD try with high biodiversity; 2) the large percentage of therecommendations include the implementation of prin- population that is indigenous; 3) the fact that hydropowerciples from ILO Convention 169 on Indigenous and development in the region has been defined as a Norwe-Tribal Peoples that protect the right of indigenous peoples gian strategic interest; 4) the fact that Norwegian actorsto consultation and free, prior and informed consent in are already looking at possible investments in the country,special instances such as relocation. while the governments of Norway and Guatemala have 5
    • expressed interest in collaborating on both hydropower ics relevant to hydropower development. Furthermore, indevelopment and securing indigenous rights; and 5) the collaboration with various experts on specialized topics,arrival of the newly established Norwegian company SN we have analysed laws, official documents, environmentalPower Africa and Central America in the region. impact studies and articles from the Guatemalan press.We hope this study will contribute to the ongoing discus- Communities were visited in Zona Ixil, Zona Reina andsion surrounding Norway’s Clean Energy Initiative as well Xalala in the state of Quiche; the municipality Tajamulcoas Norway’s international energy policy, in general. Fur- in the state of San Marcos; and the state of Altaverapaz.thermore, we hope that Norwegian actors will review this Other observations have been undertaken in the state ofstudy prior to investing or getting involved in develop- Zacapa and the municipality of Chuarrancho. Duringment activities in indigenous areas. Lastly, we hope that visits to local communities we interviewed local leaders,this study will serve local communities and organizations people from the communities and local organizationsworking for just and sustainable water management. about their position regarding hydropower projects that are planned or under construction on their territories. In addition, we visited areas where consultation processes on hydropower projects have been carried out.1.1 Methodology For more detailed information on the energy sector inInformation gathering has been undertaken by collecting Guatemala, we conducted interviews with key govern-written material from international and national (Guate- ment and state actors. These interviews covered govern-malan and Norwegian) sources, and through interviews ment plans for the sector and the related legal and politi-and meetings with different actors in the sector in both cal framework used to realize these plans. We conductedcountries. interviews with the Ministry of Natural Resources and the Environment (MARN), the Ministry of Energy andInformation gathering in Guatemala was conducted dur- Mining (MEM), and the National Council of Protecteding a series of field visits carried out over the course of Areas (Conap). The second section of the report includesseveral months comprising two distinct periods: June- information from interviews conducted with differentAugust 2009 and November-December 2009. The sources civil society actors, including social, indigenous and en-and information from Guatemala used in this study com- vironmental organizations, as well as academics. Devel-prise interviews, official documents (laws and regulations, opers, including members of AGER and ANC, were alsopolicy documents and EIA studies), observations, news- interviewed.paper articles and documentation from various organi-zations. The collection of information was mainly done To get a broader picture of Norwegian policy and practicethrough interviews with different actors in the sector: in the area, we talked to the Norwegian embassy in Guate-state actors, actors from civil society, affected communi- mala, Norad, Norfund, SN Power, and Norwegian civilties and companies. We made several trips to different society organizations, such as Norwegian Church Aid,communities, and observed or participated in discussions Norwegian People’s Aid and the Norwegian Solidarityat a variety of conferences and other events featuring top- Committee for Latin America (LAG).6
    • 2 International ContextDevelopment initiatives in indigenous areas are contested developers, with the result that indigenous communitiesaffairs in many developing countries. Sources of conflict are excluded from decision-making arenas.are often related to competing visions of what develop-ment means and who gets to decide what form it should ILO Convention 169 is a comprehensive and legallytake. This is especially true regarding questions related binding convention that exclusively covers indigenousto access to natural resources, land ownership and the and tribal peoples’ rights. The Convention is the principalimportance of environmental stewardship. Conflicting instrument used to uphold the collective rights of indi-development ideologies, rights, and ethical questions genous peoples. Latin America is the region in the worldregarding mining, oil and gas extraction, and large-scale where most countries have ratified the ILO convention;infrastructure projects have been heavily debated in 14 countries as of September 20092. The convention add-recent years. Hydropower projects have not been exempt resses many aspects of indigenous people’s lives, such asfrom this. The question of hydropower development education, customs, environment, land rights, the right tocentres on control of territory and water resources, which be consulted, the right to participate in decision-makingin turn determines who benefits and who has access to processes, self-identification and spiritual values. Articlesnatural resources. 6 and 7 of the convention address the right to consul- tation and participation in decision-making processesHydropower development worldwide is a US$40 billion a involving indigenous peoples and the right to decide theiryear industry, involving a wide range of actors, including own priorities in the process of development as it affectsstate agencies, dam-building companies, consultancies, them.donor agencies, banks and international finance insti-tutions. Projects, once conceived by developers, tend to Consultation is a process to be undertaken between thegather a momentum of their own, in which financial respective government and indigenous peoples within theand technical aspects are prioritized, and environmental country. Indigenous peoples are to be consulted aboutand social aspects are given less consideration or simply legislative or administrative measures which may affectoverlooked. them directly, and are to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development that concern them2.1 Indigenous Rights (see box). Articles 13 and 16 concern land and relocation, where the term “lands” includes the concept of territories,Historically, dams and hydropower projects have had which “covers the total environment of the areas whichserious impacts on the livelihoods, territories and culture the peoples concerned occupy or otherwise use”. Reloca-of indigenous peoples. Due to discrimination and mar- tion shall take place only with the indigenous groups’ freeginalization, indigenous peoples have borne a dispropor- and informed consent. Free, prior and informed consenttionately higher share of the negative impacts of projects. (FPIC) is an important principle that has been furtherIndigenous peoples’ rights are often not addressed in elaborated in the United Nations Declaration on thenational legal frameworks, and are therefore ignored by Rights of Indigenous Peoples (2007).2 Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Paraguay, Peru and Venezuela 7
    • Indigenous women in Guatemala ILO Convention 169 Article 6 Article 13 1. In applying the provisions of this Convention, governments shall: 1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cul- (a) consult the peoples concerned, through appropriate pro- tures and spiritual values of the peoples concerned of their cedures and in particular through their representative institu- relationship with the lands or territories, or both as applicable, tions, whenever consideration is being given to legislative or which they occupy or otherwise use, and in particular the col- administrative measures which may affect them directly; lective aspects of this relationship. 2. The consultations carried out in application of this Con- 2. The use of the term “lands” in Articles 15 and 16 shall vention shall be undertaken, in good faith and in a form ap- include the concept of territories, which covers the total en- propriate to the circumstances, with the objective of achieving vironment of the areas which the peoples concerned occupy agreement or consent to the proposed measures. or otherwise use. Article 7 Article 16 1. The peoples concerned shall have the right to decide their 2. Where the relocation of these peoples is considered nec- own priorities for the process of development as it affects essary as an exceptional measure, such relocation shall take their lives, beliefs, institutions and spiritual well-being and the place only with their free and informed consent. Where their lands they occupy or otherwise use, and to exercise control, consent cannot be obtained, such relocation shall take place to the extent possible, over their own economic, social and only following appropriate procedures established by national cultural development. In addition, they shall participate in the laws and regulations, including public inquiries where appro- formulation, implementation and evaluation of plans and pro- priate, which provide the opportunity for effective represen- grammes for national and regional development which may tation of the peoples concerned. affect them directly.8
    • In 2007 the United Nations Declaration on the Rights of their own time; and informed means that informationIndigenous Peoples (UNDRIP) was ratified by the UN (relevant, understandable and accessible) should be pro-General Assembly after more than twenty years of discus- vided in their local languages and subject to local normssion within the UN system. The declaration represents an and customs. Indigenous peoples should be free to makeimportant advance in the rights of indigenous peoples; choices about the way they are governed and what hap-indigenous representatives played a key role in the de- pens on their lands.velopment of the declaration3. The question of consultation and consent has been a to-The declaration takes the fundamental elements of ILO pic of debate regarding development projects. The WorldConvention 169 and further elaborates self-determination Bank and others have expressed concern that consentand collective rights. In this context, articles 18, 19, 23, would effectively mean “a right of veto” for indigenous28 and 32 are of special importance. Free prior and groups. Consultation is often understood as a processinformed consent (FPIC) is an important element that which only requires exchange of information that leadsrecurs throughout the declaration. FPIC involves not only to “broad support of affected communities”, and does notconsulting with indigenous peoples, but gaining their involve sharing or transferring decision-making authorityconsent and cooperation. Consent implies giving appro- and more inclusive and collaborative decision-making.val or assent after thoughtful consideration. Where ILO The Intenational Finance Corporation (IFC), the privateConvention 169 only talks about consent in relation to sector arm of the World Bank group, supports consulta-relocation (article 16.2) and stipulates that states should tion rather than consent. The World Resource Instituteobtain agreement or consent, the declaration goes further (WRI) promotes free, prior and informed consent as pre-by saying that governments shall consult to obtain free, ferable to consultation. Related to hydropower projectsprior and informed consent. (see below), the World Commission on Dams is the only standard that recommends the inclusion of this principle.According to article 32 of the declaration, states shallconsult and cooperate to “obtain their free and informed The Inter-American Court of Human Rights has playedconsent prior to the approval of any project affecting a vital role in recent years, hearing different cases relatedtheir lands or territories and other resources, particu- to the rights of indigenous peoples in Latin America. Thelarly in connection with the development, utilization or cases before the Inter-American Court of Human Rightsexploitation of mineral, water or other resources”. The have generated important precedents on the obligationsprinciples of consultation and consent promote mutual of States. The court has ruled in favour of demandsunderstanding and consensus in decision-making, and presented by indigenous peoples from different Latinavoid the imposition of decisions. Free refers to a process American countries. The fundamental importance ofwithout external manipulation, interference, coercion and these judgements is the use of principles established inintimidation; prior refers to timely disclosure of infor- the ILO Convention 169 regarding the right to free, priormation where indigenous peoples can make decisions in and informed consent, consultation, and real participa-3 The vote was carried by an overwhelming majority of 143 countries in favour, 4 against (Canada, Australia, New Zealand, and the United States) and 11 abstentions. 9
    • United Nations Declaration on the Rights of Indigenous Peoples Article 18 Article 28 Indigenous peoples have the right to participate in decision- 1. Indigenous peoples have the right to redress, by means that making in matters which would affect their rights, through can include restitution or, when this is not possible, just, fair representatives chosen by themselves in accordance with and equitable compensation, for the lands, territories and their own procedures, as well as to maintain and develop their resources which they have traditionally owned or otherwise own indigenous decision-making institutions. occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and in- Article 19 formed consent. States shall consult and cooperate in good faith with the indig- Article 32 enous peoples concerned through their own representative institutions in order to obtain their free, prior and informed 1. Indigenous peoples have the right to determine and de- consent before adopting and implementing legislative or ad- velop priorities and strategies for the development or use of ministrative measures that may affect them. their lands or territories and other resources. Article 23 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own represen- Indigenous peoples have the right to determine and develop tative institutions in order to obtain their free and informed priorities and strategies for exercising their right to devel- consent prior to the approval of any project affecting their opment. In particular, indigenous peoples have the right to lands or territories and other resources, particularly in con- be actively involved in developing and determining health, nection with the development, utilization or exploitation of housing and other economic and social programmes affecting mineral, water or other resources. them and, as far as possible, to administer such programmes through their own institutions. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.4tion of indigenous peoples in decision-making processes. peoples are obligated to comply with three importantThe rulings also highlight the rights of local communities guarantees from international law: 1) effective partici-and indigenous peoples to define their own vision of pation, through good faith consultations, to obtain free,development. prior and informed consent; 2) equitable benefit-sharing between affected populations (groups) and the State; andImportant cases in the Inter-American human rights sys- 3) objective and impartial preparation and monitoring oftem include the case of the Saramaka people vs. Surina- Environmental Impact Studies6.me; the case of the indigenous community Sawhoyamaxaand the indigenous community Yakye Axa in Paraguay; The Organization of American States (OAS) is also de-the case between of the Maya Achi community and the veloping an American Declaration of Indigenous Rights.massacre Plan Sanchez in Guatemala; and the case of the The OAS working group is currently engaged in the finalMayan communities in the district of Toledo, Belize. revision of the draft declaration. Indigenous and state delegations are participating and submitting proposalsThe Inter-American Court of Human Rights ruled in in the debate and negotiation sessions where the text isNovember 20075 that States that wish to authorize pro- being drafted.7jects affecting natural resources and tribal and indigenous4 http://www.un.org/esa/socdev/unpfii/en/drip.html5 Caso del Pueblo Saramaka Vs Surinam, sentencia del 28 de noviembre de 2007 (Excepciones preliminares, fondo, reparaciones, y costas).6 Carlos Loarca: Mecanismos de impunidad ambiental para la hidroeléctrica Xalalá contra la consulta comunitaria de buena fe del Ixcán7 http://www.oas.org/consejo/CAJP/Indigenous%20special%20session.asp10
    • 2.2 Hydropower standards and guidelinesThe World Commission on Dams (WCD) was set up in1998 by the World Bank and the International Union forConservation of Nature (IUCN). WCD published a reportin 2000 that was the result of two years of research, dia-logue and consultation regarding the development effectsof big dams. It is, to date, the most complex, global evalu-ation of specific development projects ever undertaken. Itwas a unique process, with representation and participa-tion from different interest groups: the hydropower indus-try, academia, government, NGOs and representatives ofaffected communities.The final report concluded that dams and hydropowerprojects have made a significant contribution to develop-ment, but have also exacted an unacceptably and un-necessarily high price in terms of environmental andsocial consequences. The WCD report8 recommended a“new framework for decision-making” for projects in thewater and energy sector, aimed at avoiding a repeat of themistakes of the past. The WCD framework promotes arights-based approach, aimed at addressing the unequalpower relations between developers and affected com-munities, and based on negotiated legal settlements. WCD countries, there exists a broad international consensusemphasizes that the livelihoods of affected groups should regarding the core values and strategic priorities set out inbe improved as a result of the projects and that dams and the recommendations. A number of financial institutionshydropower should be seen as one of many alternatives for have since recognized the value of the report and adoptedrenewable energy production. the recommendations, including the European Invest- ment Bank (EIB), the European Bank for ReconstructionThe WCD report received a mixed response, but despite and Development (EBRD) and HSBC9. The report hascriticisms and rejection by a number of dam-building also been the focus of numerous multi-stakeholder dia-8 World Commission on Dams (2000) Dams and Development – A New Framework for Decision-making9 “HSBC is one of the largest banking and financial services organisations in the world. HSBC’s international network comprises around 8,000 offices in 88 countries and territories in Europe, the Asia-Pacific region, the Americas, the Middle East and Africa”. Source: http://www.hsbc.com/1/2/about 11
    • logue processes throughout the world. Germany and the Besides the WCD recommendations, there exist a numberNetherlands have restricted purchases of Clean Develop- of different international standards and frameworks aimedment Mechanism (CDM) carbon credits from big dams at ensuring sound project development and addressing theto those in line with WCD guidelines, while, under EU issues mentioned above. These include the Sustainabilitylaw, carbon credits purchased from hydropower projects Guidelines and Sustainability Assessment Protocol of thelarger than 20 MW can only be used in the European International Hydropower Association (IHA), the WorldEmissions Trading System (ETS) if in compliance with Bank’s Operational Policies and Performance Standards,WCD recommendations. and the banking sector’s Equator principles.In spite of the consensus that has coalesced around the The Sustainability Guidelines and accompanying Sus-core principles of the WCD report, substantial challenges tainability Assessment Protocol were developed by IHAin hydropower development still remain. Communities between 2004 and 2006. The protocol is currently underdirectly affected by projects are often not participating in review and a revised protocol is expected in 2010. Thedecision-making processes. Comprehensive assessments IHA protocol is neither a standard, nor a set of guidelines,of alternatives for renewable energy production are rarely but a voluntary assessment framework that measuresundertaken. Environmental Impact Assessments are often “performance” by giving “scores” on a range of aspectscarried out at a late stage or poorly conducted, with the regarding the quality of project development. Unlikefocus on mitigation rather than preventive measures. The WCD, the protocol neither defines minimum standardsconsequences for people living downstream are often not that developers should follow nor rights that should beadequately taken into account. Communities that have respected. A project that violates local communities’ orsuffered negative impacts, as a result of dam construction, indigenous rights or international human rights can inare inadequately compensated, unsuccessfully relocated practice get a good overall score.and provided with inadequate forms of livelihoods. The World Bank alone has financed over 550 dams world-Among the international standards and guidelines in the wide. The Bank’s Operational Policies address issues suchhydropower sector, WCD is the only one that promotes as indigenous peoples, the environment, natural habitatfree, prior and informed consent, stating that there is and dam security. In its policies, the World Bank statesa need for “negotiated agreements and decision-making that avoidance of impacts is preferable to mitigation, whileprocesses based on free, prior, and informed consent where improving livelihoods for affected communities is desir-projects affect indigenous and tribal peoples”. Key elements able. However, the policies also allow for restoration of lostof the WCD strategic priority on “public acceptance” livelihoods, and pay insufficient attention to downstreaminclude the recognition of rights, assessment of risks, nego- impacts and the importance of environmental flows. Thetiated agreements and decision-making processes based on IFC Performance Standards include detailed guidelinesFPIC. Access to information and legal assistance to enable for relocation of affected groups and a grievance mecha-stakeholders’ informed participation in decision-making nism, but there are also many vague formulations such asprocesses is required. Moreover, the WCD considers public “adequate openness” regarding project information andacceptance to be “essential”, achieved through “agreements an overemphasis on monetary compensation instead ofnegotiated in an open and transparent process”. sustainable livelihoods.12
    • The Equator Principles are voluntary standards for finan- implementation of the project”. In principle 5 on “Con-cial institutions to manage environmental and social risk sultation and Disclosure” the Equator Principles statein their project finance transactions. The principles were that “the government, borrower or third party expert hasestablished in 2003 by nine banks and are based on the consulted with project affected communities in a struc-IFC Performance Standards on environmental and social tured and culturally appropriate manner. For projectssustainability. The IFC Performance Standards go further with significant adverse impacts on affected communi-than the IHA Sustainability Guidelines and Assessment ties, the process will ensure their free, prior and informedProtocol in calling for free, prior and informed “consulta- consultation and facilitate their informed participationtion”, “informed participation” and “broad community as a means to establish, to the satisfaction of the EPFI10support”. The Equator Principles call for “consultation whether a project has adequately incorporated affectedand participation of affected parties in the design, review communities’ concerns…The borrower will tailor itsand implementation of the project”. Nevertheless, the consultation process to the language preferences of the af-Performance Standards stop short of the rights-based fected communities, their decision-making processes, andapproach of WCD and the requirement for the free, prior the needs of disadvantaged or vulnerable groups.”and informed consent of indigenous peoples and vulner-able groups. The performance standard also states that According to WCD, negotiations with affected people thatthe views of affected communities should be considered result in legally enforceable agreements are essential forfor issues beyond just mitigation measures, including “the developing projects. People affected by the project (in thesharing of development benefits and opportunities, and reservoir, upstream, downstream, catchment and con-implementation issues.” struction areas) should be included in the impact assess- ment. These affected people should be the first to benefitIHA’s Sustainability Guidelines and Sustainability Assess- from the project, and agreements should be negotiatedment Protocol imply that “community acceptance” of the with them.project is desirable, but not essential. The IHA guidelinescall for participation in decision-making through a pro- IFC requires free, prior, informed consultation and goodcess that the community views as “open, fair and inclu- faith negotiation with the affected communities whensive.” Community participation is emphasized primarily indigenous people are to be relocated and encourages thein mitigation measures. Neither the Guidelines nor the use of “negotiated settlements” to acquire land rights. TheProtocol provide guidance as to how to facilitate effective IFC Performance Standards say vulnerable people shouldcommunity participation or acceptance, or what these not be “disadvantaged in sharing development benefits”would constitute. The IHA framework does not call for and that development opportunities should be identi-free, prior, and informed consent of indigenous or tribal fied, but stop short of requiring benefit-sharing. The IHApeoples. framework makes no reference to the legal enforceability of agreements and puts much less emphasis on negotia-The Equator Principles promote “consultation and tions with affected communities. Nor does IHA requireparticipation of affected parties in the design, review and benefit-sharing with affected communities.10 Equator Principles Financial Institution. 13
    • 3 The case of GuatemalaIn this chapter we give an overview of Guatemala’s eco- hotspot and Guatemala has the largest percentage oflogical context, its environmental policies, its indigenous protected areas in Central America. Due to the country’speoples and the privatization of the energy sector in the location on the land bridge between North and South1990s. This is followed by a presentation of the various America, with the Pacific Ocean on one side and theactors in the sector, and selected topics that emerge from Atlantic on the other, in addition to differences in altituderelations between the various actors. ranging from 0 to over 4 000 meters above sea level, Gua- temala is characterized by exceptionally diverse ecosys- tems and great biological diversity16.3.1 Background113.1.1 Geography and people Guatemala and biodiversityGuatemala covers an area of 108,889 km² that borders Guatemala is recognized as a biodiversity hotspot. TheBelize, El Salvador, Honduras and Mexico. In 2009 the country has 14 eco-regions, and in 2005 over one-thirdpopulation was estimated to be around 13.3 million of Guatemala was forested17. About half of the forests arewith a population density of 122 per km² 12. Guatemala classified as primary forests, which are considered to con- tain the highest levels of biodiversity. According to figuresis the most populous of the Central American countries, from the World Conservation Monitoring Centre, Guate-and population growth was estimated to be 2.1 percent mala has 1 246 known species of amphibians, birds, mam-in 200913. The majority of the population is indigenous mals and reptiles. It is also home to at least 8 681 speciespeoples14. According to UNHCR15, 65 percent of the of vascular plants. With around 30 percent of the area de-Guatemalan population is rural and three quarters of the clared protected areas, Guatemala has the largest percent-indigenous population live in the rural departments. age of protected land in Central America18.In spite of being a small country, Guatemala has im-pressive cultural and ecological diversity. Mesoamerica, Guatemala is rich in renewable and non-renewable en-which includes Guatemala, is recognized as a biodiversity ergy resources, and only a small percentage of these have11 Much of this section is based on Hirsch, C. (2010) The political ecology of hydropower development in Guatemala: Actors, power and spaces. Master thesis University of Life Sciences12 CIA World Factbook 201013 Ibid14 Numbers vary from 40 to 65 percent. According to many indigenous organizations, the number is 65 percent, while official numbers are 40. From the 2001 census, 40 percent of the population was indigenous groups, but the methods have been questioned. In the census K’iche made up 9.1 percent; Kaqchikel 8.4 percent; Mam 7.9 percent; Q’eqchi 6.3 percent; other Mayan 8.6 percent; indigenous non-Mayan 0.2 percent; and others 0.1 percent. In addition to Spanish, there are 23 officially recognized Amerindian languages, including Quiche, Cakchiquel, Kekchi, Mam, Garifuna, and Xinca.15 The UN Refugee Agency http://www.unhcr.org/refworld/topic,463af2212,469f2e812,4a66d9b550,0.html16 Detlefsen et al (1991) Plan de acción forestal de Guatemala.17 36,3 percent, according to The Economic Commission for Latin America (ECLA)18 28 percent in 2007, according to The Economic Commission for Latin America (ECLA)14
    • Guatemala is a country with high biodiversity.been exploited. Guatemala is the largest oil-producing na-tion in Central America. With over 3 000 rivers, the coun- YUCATAN PENINSULAtry is regarded as ripe for hydropower development, with GULF OF MEXICOa potential production capacity of up to 5 000 MW, ofwhich only 11 percent has been exploited19, according to MEXICOthe National Commission for Electrical Energy (CNEE). CARIBBEAN SEA BELIZEThe topography is irregular, with a volcanic chain andtwo mountain ranges: Sierra Madre and Sierra los Cu-chumatanes. Climate varies in the country’s three climate GUATEMALAzones, which are the tropical climate zone (under 1,000metres above sea level), temperate zone (1,000-2,000 HONDURASmetres above sea level), and the cool zone (over 2,000 PACIFIC OCEANmetres above sea level). Guatemala’s climate is character- EL SALVADOR NICARAGUAized by two seasons – the wet season that lasts from Mayto November and the dry season which prevails betweenNovember and April. Despite its many natural resources, Guatemala is one of the poorest countries in Latin America, and a country withGuatemala has a complex water system, with 40 watersheds huge inequalities. The distribution of income remainsand 3 000 rivers flowing to the Pacific Ocean, the Atlantic highly unequal; Guatemala ranks 122 on the UN HDI indexOcean and the Gulf of Mexico. Amongst the largest rivers, (2008) with more than half the population living belowwhere a potential for hydropower has been identified, are the national poverty line20. In 2007, 27 percent of the adultthe Usumacinta, Motagua, Sarstún, Ixcan and Polochic. population was illiterate and life expectancy was 70 years21.19 Comisión Nacional de Energia Electrica (CNEE), Plan de Expansion indicativo del Sistema de Generación 2008-202220 56 percent, estimation 2009 http://hdrstats.undp.org/en/countries/country_fact_sheets/cty_fs_GTM.html#21 UNDP Human Development Report 2009 15
    • Mayan ceremonies are an important part of the Mayan culture.3.1.2 Indigenous Peoples in Guatemala the rest of the population, indigenous people have been subjected to political exclusion, cultural discriminationMany international reports have revealed the grave situa- and economic marginalization from society.”23tion of the indigenous peoples of Guatemala, and the hugeinequalities that exist between society in general and the The indigenous groups in Guatemala are among the poor-indigenous population. This has resulted in calls for the est in the country. Figures from 2006 show that, amongGuatemalan state to comply with both the Peace Agree- the indigenous population, 74.8 percent are poor, and 27.2ments signed in 1996 and ILO convention 169, ratified percent live in extreme poverty24. Furthermore, over 70by Guatemala in 1995. The 2002 report of the UN special percent of the people living in rural areas are poor. Quicherapporteur22 on the situation of human rights and funda- and Altaverapaz are the poorest states in the country andmental freedoms of indigenous people, says the following home to a majority of indigenous groups25. Lack of educa-about Guatemala: tion and access to health services is a problem in many poor communities. Many indigenous groups live in the “Guatemala is a multi-ethnic, pluri-cultural and multi- central highlands of Guatemala, largely due to agricultural lingual society, in which around half of the population policies implemented by the state or the armed conflict of 12 million belong to the Maya, Xinca and Garífuna that have forced local communities to relocate or migrate. indigenous peoples. In a number of regions of the country, especially in rural areas, indigenous peoples The four largest indigenous groups in Guatemala are make up a majority of the population. National identity K’iche, Kaqchikel, Mam and Q’eqchi. In addition there are in Guatemala is based to a large extent on the living others Mayan groups, and a few non-Mayan groups such as cultures of its indigenous peoples with their traditions, the Xinka and the Garifuna. In addition to Spanish, there their community values, their languages and their spiri- are 23 officially recognized Amerindian languages, includ- tuality. But far from being full and equal partners with ing Quiche, Cakchiquel, Kekchi, Mam, Garifuna, and Xinca.22 Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with UN Human Rights Commission resolution 2001/57. Mission to Guatemala23 Ibid24 Instituto Nacional de Estadistica (INE) 200625 In Quiche, where 93.5 percent of the population is indigenous, 81 percent of the population lives in poverty, with 25.6 percent of the population living in extreme poverty. The situation in Altaverapaz is even more acute where 78 percent of the population lives in poverty and 43.5 percent lives in extreme poverty. Indigenous people account for more than 98 percent of the population in Altaverapaz.16
    • Source: http://www.guatemalainfo.com/images/map_of_guatemala_.jpg 3.1.3 The legacies of the armed conflict The country suffers from severe and unequal land distri- bution, mainly due to a lack of will by powerful political Guatemala is a country that has been deeply scarred by and economic groups to undertake land reform. Unequal years of authoritarian government and a violent conflict land distribution was one of the causes of the civil war. The which lasted for 36 years (1960-1996). Many people were peace agreements from 1996 address land distribution, re- displaced by the violence and civil war. Estimates vary from settlement and return to communities, as well as socioeco- 240,000 to 1 million people. 14 years after the Peace Agree- nomic and political integration. However, the agreement ments many people are still waiting for compensation and has not been implemented successfully, largely because of many have not been able to return to their communities. resistance from the military and economic elites. Displa- 17
    • cees from the armed conflict have been discriminated The Peace Agreementsagainst and stigmatized, making it difficult for them toreturn to their communities. The Peace Agreements constitute a framework with com- mitments to assure a long lasting peace process and to solveThe UN special rapporteur (2002) stated that “one of the the enduring conflicts that have historically excluded thefundamental problems affecting the indigenous peoples majority of the indigenous population from decision-mak-relates to the right to land. The lack of access to land, the ing processes. The first breakthrough was the Human Rightslack of response to land-related claims, lack of respect for Accord, signed in March 1994, followed by the Agreementtraditional places such as communal forests, forced re- on Identity and Rights of Indigenous Peoples (AIRIP) fromsettlement of indigenous peoples as a result of economic 1995 and the Demilitarization Accord from 199626.development projects, and problems stemming from lossof land caused by the armed conflict, create a situation of The AIRIP accord mandates a constitutional amendmentrising social tensions.” Ever increasing numbers of indig- redefining Guatemala as a multi-ethnic, multicultural andenous people and poor peasants have turned to land oc- multilingual nation, and represents a reference point forcupations as their last resort for addressing unequal land the structural changes that the state needs to undertakedistribution. The occupations have led to crackdowns by to incorporate the Mayan, Garifuna and Xinca peoplesthe authorities, especially during the Oscar Berger gov- in all aspects of national life. Unfortunately, this has noternment (2004-2008). yet been accomplished and different international bodies have stressed the urgency of reforms related to indigenousDue to a long history of expulsions, relocations, forced peoples. The agreements have to a large extent disappearedresettlement and migration, many local communities lack from public debate and from the agendas of the politicalaccess to the land they need. The increased and intensified parties. AIRIP proposes reforms, including institutionaluse of the land in Guatemala has put ecosystems under models for participation by indigenous people in decision-severe pressure. The use of land for agro exports and cattle making, and the establishment of mandatory consultationranches, mining activities and larger infrastructure projects mechanisms and institutions representing indigenousare now threatening the areas for local settlements and peoples. AIRIP indicated the need for changes in munici-especially indigenous groups. pal laws to take into account indigenous communities and their leaders, respect for common law, distribution ofLastly, and of fundamental importance, the many years public expenditure and the ratification of the ILO Conven-of conflict and repression of all types of organisation and tion 169.opposition have left a legacy of disrupted social networks,fear and lingering distrust in many local communities. The Peace Accords also acknowledged the historic neglectThe killings and persecution of local leaders and others are of the infrastructure needs of rural and other disadvan-strong in the memory of the affected communities. The taged communities and the importance of modern utili-lack of trust in the state is also evident. ties, such as electricity and water. A commitment was made to expand electricity coverage to disadvantaged groups.26 Strengthening of Civilian Power and the Role of the Army in a Democratic Society18
    • Some of the laws and reforms approved in Guatemala in 3.1.4 Environmental policiesrecent years are directly related to commitments fromthe Peace Agreements and are of vital importance for In recent years severe environmental issues have come tostrengthening the rights of indigenous peoples. These the fore in Guatemala, such as deforestation, soil erosion,include the Law of Development Councils (2002), the contamination and water pollution. According to the Na-Municipal Code (2002) and the Reform of the Penalty tional Council of Protected Areas (CONAPE), more thanCode regarding Discrimination (2002). The first two are 85 percent of the rivers in Guatemala are contaminated27.intended to increase participation by indigenous peoples The environmental degradation is due to a combination ofand recognize their political institutions. factors, including weak regulation and poor enforcement, a lack of environmental policies, and powerful interests inIn March 1995, Guatemala ratified ILO Convention 169 the agro-business, industrial and mining sectors28.on the Rights of Indigenous and Tribal Peoples. Theconvention entered into force in June 1997. The Law of The environmental degradation in Guatemala was con-Development Councils created development councils at firmed by the United Nations Verification Mission in Gua-local, municipal, provincial, regional and national level. temala (MINUGUA) in 2001. According to MINUGUA,The local development councils were to be elected by the the environmental destruction was a result of the samelocal communities, but primarily with an administra- social processes that generate concentration of wealth, andtive mandate, in particular concerning the use of local at the other extreme, social exclusion and poverty in thebudgets. The Municipal Code includes neighbourhood country. They asserted that it was not possible to separateconsultations (”consultas vecinales”), in which local natural resources from their “economic, cultural, socialcommunities can give their opinion about development and political dimensions”.29projects “that affect all the citizens of the municipality”. During the 1980s and 1990s the environmental, legal andAfter a long period of authoritarian government, an institutional framework of Guatemala was elaborated,elected civilian government took power in Guatemala largely inspired by international processes such as the Rioin 1986. However, the country was still in the midst of conference on environment and development in 1992. Anconflict which disrupted the process of democratization. emerging environmental movement pushed for the realisa-Alvaro Colóm from the social democratic party, Unidad tion of new laws and regulations. The Law of Environ-Nacional de Esperanza (UNE), won the presidential elec- mental Protection and Improvement was passed in 1986,tions in 2007 and took office in 2008. Colóm stated that resulting in the creation of the National Commission ofhe would create a government with a “Mayan face”, and Environment, later turned into the Ministry of Natural Re-focus on education and health, as well as social pro- sources and Environment (MARN). Other important lawsgrammes. include laws on forestry (1996), protected areas (1989) and conservation and sustainable use of biodiversity.76 Personal communication, August 200928 SAVIA 2009, Realidad Ecológica de Guatemala29 MINUGUA 2001 19
    • Guatemala has over 3000 rivers.Importantly, Guatemala does not have a particular water Degradation of groundwater and contamination oflaw for regulating water resources. The Guatemalan water sources are two serious problems. Rivers are heav-constitution acknowledges water as state property and ily contaminated by intensive agriculture, agro-industrialprioritizes use for social interests, but without a water law, activities and wastewater from urban areas. Mining and oilwater is in practice administered and used without regula- extraction have serious environmental effects, contaminat-tions30. Several processes have been started during the last ing both soil and water, as reported by several organiza-30 years to elaborate a law proposal31, but these have met tions. The north of Guatemala and the state of Petén havestrong resistance. The last intent was made in 2006, a pro- mostly been impacted by oil extraction. The impacts fromcess initiated by the Commission for the environment and mining on the environment and local communities, asnatural resources in the Congress, accompanied by the en- reported by the organizations, include destruction of floravironmental organization CALAS. Nevertheless, without and fauna; excessive use of water; and the use of chemicalsintegrating the rights of indigenous and local communi- that severely contaminate water, affecting both ecosystemsties and securing the human right to water, the proposal and the health of local communities32.have been met by strong opposition from environmentaland social organizations, and indigenous groups, particu- During the last decade the mining sector has expandedlarly in Totonicapán. Furthermore, powerful interests in in Guatemala. The small percentage of royalties paid tothe agro-business sector also oppose a water law. municipalities (0.5 percent) and the state (0.5 percent) has30 Hurtado Paz y Paz, M. (2006) Protestas sociales y recursos naturales en Guatemala. FLACSO. Guatemala City.31 A law proposal for water “Ley General de Aguas” was presented in September 2004 by congress member Alfredo Cojtí, and was elaborated by CALAS.32 Comisión Pastoral Paz y Ecología - Copae (2009): Situación actual del agua de los rios Tzala y Quivichil en el area de influencia de la mina Marlin, ubicada en los municipios de San Miguel Ixtahuacan y Sipikapa, departamento de San Marcos, Guatemala. Segundo informe annual del monitoreo y analisis de la calidad del agua. Diocesis de San Marcos.20
    • been the subject of extensive debate, as well as the envi- ventive33. A series of institutions have been created to dealronmental and health impacts in the areas of exploitation. with environmental issues, but these face several challenges,Weak enforcement of environmental regulations is felt by such as lack of resources, lack of competent staff and littlecommunities, when livelihoods and the environment are de- coordination between the different entities34. High turnoverstroyed, and health endangered. Civil society organizations of bureaucrats in the various entities causes a lack of conti-claim that the state is doing little to protect local communi- nuity in priorities, which results in a lack of implementationties, and companies are operating in a legal and institutional of long term programmes and projects. Weak institutionsvacuum. Local communities have mobilised and started to have been taken advantage of by different actors, companies,reject mining and big infrastructural projects in their areas. groups and individuals for their own interests.Furthermore, Guatemala is considered one of the world’smost vulnerable countries to climate change. The GlobalDecadal Climate Risk Index for 1997-2007 ranked Guate-mala 11th of 177 countries, underscoring the country’s veryhigh vulnerability to climate-related events. In recent years,storms and droughts have had massive human, environ-mental and economic impacts in Guatemala, particularlyaffecting poor communities in rural areas. Climate changemitigation is used as an argument for the development ofthe hydropower sector, potentially rendering local residentseven more vulnerable to climate change than before.A severe problem facing the country is the lack of a plan forland use, with accompanying laws and regulations, for zoningof different land uses and land management which wouldhave permitted consideration of fragile ecosystems andsecured the rights of indigenous peoples. Guatemala has alsosigned various conventions and agreements that have not yetbeen implemented in the legal framework of the country.According to a study from FLACSO (2006), the current legalenvironmental framework is ample but not very effective,and the initiatives are reactive rather than proactive and pre- Guatemala has many original water sources.33 Margarita Hurtado Paz y Pax (2006) – Protestas sociales y recursos naturales en Guatemala. FLACSO. Guatemala City34 Such as INAB, CONAP and CONRED. MEM and MIGA are also important actors related to environmental issues. 21
    • 3.2 The power sector tant new actors have emerged in services, banking and in Guatemala35 non-traditional agriculture. Together with international proponents of neoliberal policies, such as the World Bank and the IMF, these groups have had a strong influence on3.2.1 1990s: An era of privatization the making of many of the laws, and the elaboration of the current legal and institutional framework.During the 1990s, and especially after the Peace Agree-ments, Guatemala has pursued economic reforms on the The electricity sector was privatized and liberalized in 1996basis of macroeconomic stabilization where neoliberal through the General Law of Electricity. Privatization waspolicies have predominated, following the Washington driven through by the energy and mining minister LeonelConsensus. Neoliberal policies have affected many sec- Lopez Rodas and the government of Alvaro Arzu, and sup-tors of Guatemalan society and introduced changes in the ported by the Multilateral Investment Guarantee Agencylegal framework promoting liberalization of the economy (MIGA) of the World Bank Group. The Arzu period fromand privatization of public companies and services. The 1996 to 2000 was the most aggressive period in Guatemalaemphasis on private initiatives has reduced the role of the in terms of privatization and structural adjustment36.state to that of regulator. Important laws were made in thewake of the Peace Agreements, such as the Hydrocarbon The drastic reform of the electricity sector included split-Law (1991), the General Law of Electricity (1996), the ting it up into different functions, including production,Mining Law (1997), and regulations for the commercial- transmission, distribution and electricity trading, favour-ization of the Hydrocarbon Law (2004). Nevertheless, ing and promoting private participation in the sector. Twomany of these laws were passed without public debate and important institutions were created: the National Commis-consultation, and participation from civil society and af- sion for Electrical Energy (CNEE), as the regulatory agen-fected groups. cy, and Administrador del Mercado Mayorista (AMM), the wholesale market administrator of the sector. In practice,In Guatemala a minority, mainly ladinos and people of Eu- this has led to private and foreign companies entering theropean heritage, represent the economic and political elite. sector where the state mainly provides authorisations andPowerful groups in the country range from the military to acts as a regulator.the financial sector to the agro-business sector, with organ-isations such as the Agrarian Owners Group (UNAGRO) Prior to the reform, electricity was provided by two stateor the Coordinating Committee of Agricultural, Commer- owned companies, EEGSA37 in the metropolitan region,cial, Industrial, and Financial Associations (CACIF). With and INDE38 throughout the rest of the country. Thethe introduction of the new economic model, impor- Electricity Law of 1996 sought to increase private invest-35 Much of this section is based on Hirsch, C. (2010) The political ecology of hydropower development in Guatemala: Actors, power and spaces. Master thesis University of Life Sciences36 Ferrigno, I. (2009). El oscuro negocio de la luz. FLACSO. Guatemala City.37 Empresa Electrica de Guatemala38 Instituto Nacional de Electrificacción22
    • ments in the sector and improve efficiency by introduc-ing competition in electricity generation, and privatizing The Electricity Reform 1996the distribution network39. In 1998, 80 percent of EEGSAwas sold to the Spanish company Iberdrola. The distribu- Under the new normative, institutional and operativetion assets of INDE were broken down into two regional framework for electricity, the system was divided into fourdistribution companies, DEORSA (serving the east of the operational areas: generation, transmission, distributioncountry) and DEOCSA (serving the west) and put up for and electricity trading. More and more private compa- nies are getting involved in power generation, in additionauction with 50-year concessions. The Spanish company to the state company INDE; two private companies areUnión Fenosa Internacional S.A. won the bid for both involved in transmission, in addition to INDE; 16 publiccompanies in 1998, supported by the Multilateral Invest- institutions and three private companies are involved inment Guarantee Agency (MIGA)40. Since privatization, distribution; while 14 private companies are engaged inINDE has been dramatically downsized and left in control electricity trading – in total, 67 entities, of which 49 areof power stations, mainly hydroelectric, as well as continu- private (73.13 %). In addition there are 800 so-called “biging to own and operate the national transmission grid. users”.The net sale revenue from the privatization of the distribu- The Ministry of Energy and Mining (MEM) is responsibletion companies (US$ 110 million) was placed in a trust for planning, coordination and enforcement in the sec- tor, implemented by the National Commission of Electricfund to finance an ambitious rural electrification pro- Energy (CNEE), which functions independently of thegramme (PER) initiated in 199841. The two distribution ministry.companies DEORSA and DEOCSA were made contrac-tually responsible for executing the investments of the The public company INDE was split into three: Empresaprogramme.42 The plan made the privatization even more de Generacion de Energia (EGEE), la Empresa de Transporteattractive, as the distribution companies were paid $650 y Control de Energia (ETCEE), and la Empresa de Distribu-for each new eligible connection achieved43. cion de Energia Electrica (EDEE). In 1998 the latter two were converted into DEORSA and DEOCSA. 91.4 per- cent of the shares in these two companies are owned by Distribuidores Electrica del Caribe, under which the Spanish company Union Fenosa operates within the country. Source: Ferrigno 2009 El Oscuro negocio de la luz. FLACSO.39 Comisión Nacional de Energía Eléctrica40 “MIGA supported the project by providing investment insurance coverage against the risks of currency restriction, expropriation, war and civil disturbance, and breach of contract”. MIGA in conflict affected countries, 2003.41 Foster & Araujo 2004 ”Does infrastructure reform work for the poor? A case study from Guatemala”42 DEORSA and DEOCSA are responsible for the distribution assets, and INDE is responsible for operating transmission assets.43 Connections 200 meters or more beyond the existing power grid and not included in the companies concession area. Source: MIGA in conflict affected countries, 2003. 23
    • 3.2.2 Strategic plan for hydropower responsibility” and insists that their investments will con- tribute to local and national development.The plan to expand the hydropower sector was initiatedby the former president, Oscar Berger, and the Gana44 Plans to expand the hydropower sector in Guatemalagovernment (2004-2008). The Strategic Plan for Hydro- are also part of a larger regional policy, the Plan Meso-power Projects was formulated in 2004 to respond to américa (former Plan Puebla Panama). The plan, initi-increasing electricity demand and an increase in oil prices, ated in 2001, is a large infrastructure project extendingand reduce dependency on fossil fuels. Several studies to from Puebla in Mexico to Panama. The project promotesdevelop the hydropower sector were carried out as early “regional integration and development” in the region.as the 1970s, but actual development was disrupted by the The plan is intended to stimulate trade by building orarmed conflict. In October 2007, three months before the improving large-scale infrastructure projects such ascurrent government came into office, the then minister of roads, airports, harbours, and electricity and telecommu-energy and mining enacted the Energy and Mining Policy nications grids.for 2008-2015.The current Colóm government moved ahead with the Plan Mesoaméricaplans, despite lack of participation by affected parties andcivil society organizations. On the 25th of May 2008 Presi- The plan consists of integration of the energy, transportdent Colóm announced an initiative aimed at changing the and telecommunications sectors; trade facilitation; sus- tainable development; human development; tourism; andcountry’s “energy mix” by favouring hydropower and coal. disaster prevention and mitigation. Transport (85 percentAt this point oil prices were at their highest. The goal is to of investments) and energy (11 percent) are the tworeduce the country’s dependency on oil and by 2022 gener- most important components.ate 60 percent from renewable resources45.At present, the state does not plan to develop projectsitself,46 arguing that private companies will do a better job, The Mesoamerican Plan has been criticized for followingand that the state does not have the capacity or financial a neoliberal model of development, favouring multina-resources. Private and foreign companies are given various tional companies over the environment, local culture,incentives to operate in the country through the Law of indigenous rights and local communities who have littleIncentives for Renewable Energy (2003), while informa- voice in the development process. Critics argue that thetion for companies is easy to access from the Guide for project only serves to put in place infrastructure that al-Investors published by the Ministry of Energy and Mining. lows free trade agreements to flourish and private compa-The Guatemalan state encourages the companies’ “social nies to operate47.44 Gran Alianza Nacional45 MEM 28th of February http://www.mem.gob.gt/Portal/home.aspx46 Personal communication, Ministry of Energy and Mining47 CIEPAC http://www.ciepac.org/encontrados.php24
    • Construction of the hydropower project Xacbal in Quiche.A decade ago, governments in the region agreed to de-velop a system for electricity interconnection (SIEPAC)48. The legal framework for the energy sectorSIEPAC consists of the construction of at least 1,800 km in Guatemala230 kV transmission line from Panama to Guatemala, • The Guatemalan Constitutionaimed at developing a regional electric market. Guatema- • General Law of Electricity (decree 1996)la’s interest in the system is first and foremost in export- • Regulations of the General Law of Electricitying electricity. Apart from Costa Rica, other countries in (Gov.ac No 256-97)the region have an electricity deficit49. In 2006, Guatemala • Regulations of the Wholesale market administrator,signed an agreement with Mexico to develop the electric- Administrador Mercado Mayorista (Gov.ac no.299-98)ity interconnection. The interconnection was finalized • Technical norms from the National Commission ofin 2009, and Guatemala will buy energy from Mexico to Electric Energy (CNEE) and AMMcover the country’s social tariff. The interconnection with • The Law of Incentives for Renewable Energy (2003) • The Law of the Environment (1986)Mexico is financed with public funds and loans to the • The Law of Protected areas (1989)state, yet another form of assistance to companies that • Regulations for Environmental Impact studies (2003)wish to export. • Municipality Code (2002)48 Sistema de Interconexion Electrica para America central49 It should be noted that the Costa Rican system is managed publicly with great success 25
    • Important actors in the sector in Guatemala are • the Ministry of Energy and Mining (MEM) • the regulating agency, the National Commission of Electric Energy (CNEE) • the wholesale market administrator, Administrador del Mercado Mayorista (AMM) • the Ministry of Natural Resources and the Environment (MARN) • the public company INDE • the distributors (mainly DEOCSA and DEORSA) • the developers and companies • the investors and the banking sector • the large-scale users (industry, mining, maquila industry) • the municipalities, the mayors and the Development3.2.3 Actors in the hydropower sector Councils • intermediaries (consultants, lawyers, conflict resolutionThe privatization of the electricity sector in Guatemala has organisations)created a new situation for the different actors involved. • actors from civil society (grassroots organizations,Previous to privatization the state was the main actor unions and NGOs)responsible for developing hydropower projects. While the • the local affected communities50state still manages projects developed prior to the privati-zation and has principal responsibility for the transmissionnetwork, the state’s role has largely been reduced to that Electricity generation is liberalized with free competition,of a regulator. With a weak regulatory capacity and the with agents and large-scale users freely entering into agree-absence of the state in many parts of the project develop- ments based on the conditions set out in the contracts, inment process, communities, as well as private and foreign terms of duration, quantity and price. Transmission andcompanies, are largely left in a legal vacuum. Privatiza- distribution are regulated by CNEE.tion has opened the doors for the participation of privateactors and transnational companies who are encouragedto develop the sector. Several private initiatives have been 3.2.4 Current developments in the power sectorproposed to develop hydropower projects, facilitated by theMinistry of Energy and Mining (MEM). According to the Ministry of Energy and Mining, im- portant advances have been made since the beginning ofThe Ministry of Energy and Mining (MEM) is responsible the Colóm government’s term in 2008. At that time, 46for formulating and coordinating the policies and plans of percent of electricity came from fossil fuels, and only 37the state and programmes in the sector and for applying percent from renewable energy. By the end of 2008, thethe General Law of Electricity. The ministry gives the final proportion was 45.8 percent from renewable energy, and,authorization for use of water and rivers. during the Colóm administration, renewable projects with a total of 1 202 MW of generating capacity haveThe National Commission of Electric Energy (CNEE) is been developed. 312 MW was added to the system dur-the technical organ of the ministry in charge of compliance ing 2009, and 444 MW of capacity are currently underwith the General Law of Electricity. CNEE is the regulator construction. Nearly 90 percent of this new production iswhich issues technical norms and regulates prices. generated from hydroelectric projects51.The Wholesale Market Administrator (AMM) is a private In October 2009 the transmission station Los Brillantes inentity, established by law, which coordinates transactions the county (departamento) of Retahuleu was inaugurated.between different participants in the electricity market, The station secures the electricity interconnection betweensecuring free competition in the market and promoting Guatemala and Mexico. This means that Central Americainvestments. is now connected with Mexico, as part of the already50 The affected communities are defined in a broad way, including the surrounding communities and the downstream communities51 MEM 28th of February 2010 http://www.mem.gob.gt/Portal/home.aspx26
    • Hydropower projects in Guatemala County In operation Under Under preparation Estimation of Total Construction or EIA process proposed projects* Alta Verapaz 5 1 3 17 26 San Marcos 1 1 3 17 22 Quiché 2 2 9 13 Huehuetenango 13 13 Baja Verapaz 2 1 1 4 8 Esquintla 5 1 – 1 7 Petén 7 7 Quetzaltenango 4 1 1 – 6 Zacapa 1 – 3 – 4 Santa Rosa 2 – – 2 4 Chiquimula 1 3 4 Guatemala 2 1 3 Izabal 1 1 1 3 Retalhuleu – 1 – 1 2 Salama 1 1 Xela 1 1 El Progreso 1 1 Jalapa 1 1 Suchitepeques 1 1 Jutiapa 1 1 Not specified 4 4 Total 24 9 16 83 132 Source: Hirsch, C. (2010) The political ecology of hydropower development in Guatemala: Actors, power and spaces. Master thesis University of Life Sciencesmentioned Plan Mesoamerica. This will facilitate energy 10 to 340 MW55. Projects are under planning or construc-exports. In addition, the county of Petén has now been tion in the counties of Altaverapaz, San Marcos, Quiche,connected to the national grid (SNI)52. Huehuetenango, Baja Verapaz, Esquintla, Petén, Quet- zaltenango and Zacapa.Over 20 hydropower projects are currently in operation inGuatemala, nine of which are operated by the state. The Particularly since the expansion of the mining andoldest is from 1926; four were built during the 1960s and hydropower sectors, conflicts have arisen over natural1970s; and two in the 1980s. One project, in particular, has resources and the control of territories; local commu-left its mark on the country: the Chixoy dam from 1983, nities have been opposed to large-scale infrastructurethe largest hydropower project in Guatemala (300MW). projects and investments from transnational companies.No projects were built during the most violent years of the The focus on the potential of hydropower seems to havecivil war, up until 1995. Between 1995 and 2009 16 projects overlooked the people living in the affected areas, as wellhave started operations, only one of them operated by as indigenous rights, the environment and the specialthe state. To date, there are around 10-15 projects under ecological context of Guatemala. The framework for theconstruction and several in the planning phase.53 Over 30 sector has created new and complicated dynamics, oftenprojects have been proposed by the National Commission fraught with conflict, between the state, business interestsfor Electrical Energy (CNEE).54 The projects range from and local communities.52 Sistema Nacional Interconectado53 Date: 28th of February: 30 proposed projects, according to Invest in Guatemala. http://www.investinguatemala.org/index.php?option=com_content&task=view&id=45&Itemid=4654 Plan de Expansion indiactivo del Sistema de Generacion 2008-202255 http://www.investinguatemala.org/index.php?option=com_content&task=view&id=45&Itemid=46 27
    • Photo credits to ADIVIMA The Chixoy dam The Chixoy dam was built by the public company INDE with were never adequately compensated. In 1998, INDE asserted financing from the Inter-American Development Bank (IADB) that they no longer had any responsibility, and the World Bank and the World Bank. Construction of the dam began without announced that their obligations had also been met. notifying the local communities in 1975, and without any esti- mates of the number of affected people. The communities living Since then, representatives of the dam-affected communities in the area to be flooded were given just a year’s notice before have on various occasions testified that they have not received operations began. By 1983 the dam had flooded 1,400 hectares the compensation and assistance they are entitled to, and have of fertile agricultural land and 3,400 mostly Mayan residents had demanded a negotiation process. According to Johnston, the been forcibly displaced56. The communities’ land titles were re- construction of the Chixoy dam project represented a complete voked by INDE, denying them the right to compensation and a disregard of the local people and their rights to land, culture, basis for negotiation. No social impact studies were conducted livelihood and even life. The affected population was the indige- and the resettlement package involved moving communities to nous group Maya Achi.57 To date, they are still suffering from loss land with poor soils and inadequate housing, and failed to meet of lands, livelihoods and life. The Johnston study recommended basic human needs. the creation and implementation of a negotiating process that would result in a legally binding reparation agreement. The failure to implement an adequate resettlement programme for local residents and the lack of consultation contributed to In total, the dam caused the inundation of 2,000 hectares of land protests and conflict in the area. Many community members and natural resources, with the disappearance of 23 communi- rejected the resettlement package and refused to move. Tension ties, 471 houses, 10 public buildings and 45 archaeological sites. escalated and the military declared opponents of the project The total affected area was 1,500 km², with 33 communities, “subversive”. According to a study entitled “Chixoy Dam Lega- 2,329 families and 11,383 persons impacted by the project58. cy Issues Study” by Barbara Johnston (2005), the army forcibly evicted residents, and, in at least two documented cases, mas- sacres of local people were carried out. In Rio Negro, 444 of the 791 villagers were killed by the army. By the time construction was completed in 1983, ten communities had been destroyed by the army to quell opposition to the dam. In spite of this IADB and the World Bank granted a second loan to Guatemala in 1984. After pressure from human rights orga- nizations, the World Bank undertook an internal investigation in 1996 which concluded that the dam-affected communities56 http://shr.aaas.org/report/xxiv/chixoy.htm57 Center on housing rights and evictions (COHRE), “México, Honduras y Guatemala. El derecho a la vivienda y la tierra frente a los proyectos de desarrollo”, 2007, pág 47.58 Informe de Identificacción y verificación de daños y prejucios occasionados a las comundades afectadas por la construccion de la hidroeléctrica Chixoy. Signed by the president of Guatemala in November 2009.28
    • 3.2.5 The legacy of Chixoy Organization of American States (OAS). The World Bank and the Inter-American Development Bank (IADB) wereThe largest dam (300 MW) built in Guatemala is the invited to participate as observers, as well as the UN refu-highly contested Chixoy dam, which started operations in gee agency (UNHCR) and the Guatemalan Human Rights1983. The state of Guatemala began construction of the Ombudsman (PDH).dam in 1975 as part of plans to expand energy produc-tion, supported by the World Bank and the Inter-American At various stages in the negotiation process, the talks wereDevelopment Bank (IADB). The dam has been heavily on the verge of collapse due to the government’s unwilling-criticized for violations of the rights of local communities ness to reach a fair and just settlement with the victims.59affected by the project and the lack of reparations. Over In March 2008 the Colóm government renewed the agree-30 years later the affected communities are still waiting for ment. In the final negotiations, the government delegationcompensation. A negotiation process has taken place in was represented by Katalina Soberanis. COCAHICH wasrecent years, the results of which will be presented in 2010. represented by Juan de Dios Garcia. The Swiss and the Norwegian embassies60 took part as observers for COCA-The 33 Chixoy dam-affected communities have formed the HICH, while the Latin American Faculty of Social Sciencesorganization “Coordinator of Communities Affected by (FLACSO) was hired to undertake the study to inform thethe Chixoy Dam” (COCAIHCH) to document the impacts final report and plan of reparation61.caused by the dam and to press for justice. After years ofprotests, the communities signed an agreement in 2006 During 2009 the negotiation process made significantwith the government, establishing a framework for the progress, as confirmed by Menendez at the end of theidentification, verification and reparation of damages and year62. On the 9th of November 2009 the final report waslosses suffered by communities and for the creation of a signed by the President, recognizing the responsibility ofroundtable to oversee the process. The executive branch of the state, and their commitment to implement a plan ofthe Guatemalan government, with various state entities, reparation63. The report will lay the basis for this plan,and the affected communities represented by COCAHICH which will be presented in 2010.were to participate in the negotiations. The plan consists of five parts: non-repetition, restitution,The negotiation process started in 2006, with facilitation rehabilitation, indemnification and satisfaction, the latterprovided by Roberto Menendez, a representative of the involving an acknowledgement of the damage caused to59 Acuerdo Político entre el gobierno de la República de Guatemala y los representantes de las comunidades afectadas por la construcción del embalse de la hidroeléctrica Chixoy, que contiene las bases para la identificación, verificación y reparación en su caso, de los daños y perjuicios ocasionados a dichas comunidades, Acuerdo firmado el 18 de septiembre 2006 entre Eduardo Stein, Vicepresidente de la República de entonces, y Juan de Dios García Xajil como representante de la Coordinadora de Comunidades, y por Roberto Menéndez de la OEA como facilitador.60 From August 200961 Generación de insumos para la identificación y verificación de daños y perjucios por la construcción de la hidroelectrica Chixoy62 Personal communication, December 200963 Informe de identificacioó y verificación de daños y perjucios ocasionados a las comunidades afectadas por la conztrucción de la hidroelectrica Chixoy 29
    • communities and an official apology from the state. Non- but also for all the indigenous peoples of Guatemala, asrepetition is particularly important for the development well as future hydropower and other development projects.of new projects, and aims to avoid a repetition of Chixoy. The state’s acknowledgement of earlier violations and aMenendez from OAS underlines the importance of the just compensation agreement will be an important pointparticipation of affected communities in future projects of departure for the state; it will signal a new willingnessfrom the very beginning, in benefit-sharing, monitor- to respect the rights of indigenous peoples in the consider-ing and consideration of basic principles and standards ation of development policies in Guatemala and elsewhere.for project development. The plan could represent a newmodel for hydropower development. On the 13th of May 2010, the plan for reparation was finalised and due to be approved by the President through aThe success and accomplishments of the negotiations to governmental accord (acuerdo gubernativo). At the time thatdate owe much to the well-organized work, documen- this report went to print, the agreement was still not signed.tation, proposals and tireless demands submitted by In June 2010, FIVAS spoke to COCAHICH who expressedCOCAHICH. As Juan de Dios Garcia, representative of great frustration at the lack of approval of the plan. TheyCOCAHICH told us: have asked for a meeting with the President and are now calling for international pressure to ensure that the plan for“As coordinator of the communities affected by the reparation is approved and that the president keep his word.construction of the Chixoy hydropower project, we haveat various times said that we are not against hydropower,but against the practices that have been used in commu- 3.2.6 Legal and institutional frameworknities and the violations of the rights of the communi-ties to trick them into selling their lands. Communities The current legal and institutional framework in Guate-should not only be on the receiving end of projects, but mala is weak when it comes to protecting citizens’ rights,also take part in the planning from the beginning to the especially indigenous rights. As we have seen, ILO conven-evaluation of the projects. We say that the communities tion 169 has yet to be implemented, and Guatemala has noshould be “socios” (partners). The solution is to follow law on consultation with indigenous communities65. Thethe recommendations of the World Commision on Dams. most important law governing the sector, the General LawWe are negotiating now, 30 years afterwards. We do not of Electricity, does not mention indigenous peoples. It iswant this to happen to other communities. How is 30 elaborated first and foremost to promote the participa-years of suffering possible? It is time that the state, inves- tion of private developers and companies, and to expeditetors and financiers take responsibility for this situation process. Article 8 states the following:not to happen on other occasions.64” “The installation of generating plants is liberalized and theThe results of the Chixoy negotiations are highly relevant latter shall require no authorization from any governmentto present day negotiations, not just for affected families, entity whatsoever and shall not be subject to limitations64 Meeting at the Norwegian Embassy in August 200965 A proposal for a law on consultations is on the table, as is a proposal for a general law on indigenous rights, put forward mainly by indigenous organizations30
    • other than those necessary for the preservation of the envi- The role of ministries and state institutionsronment and for the protection of persons, their rights andtheir property. Nevertheless, in order to use property of the After the privatization of the sector, the state plays a small,state for these purposes, authorization from the respective but important role in planning, negotiation, constructionministry (MEM) shall be required when the power of the and management of hydropower projects. The state is nowplant is over 5 MW.(……)” primarily responsible for regulation of the sector. With inadequate mechanisms to protect citizens in the currentAs water is defined as state property in Guatemala’s legal and institutional framework, and given the country’sconstitution, developers need to apply for a permit from history of exclusion, many local communities do not trustthe Ministry of Energy and Mining. Concessions for the the state. This has resulted in a swell of scepticism amonguse of rivers are normally given for 50 years. An envi- communities and other sectors of civil society. The lack ofronmental impact assessment is required (article 10), coordination between state institutions at different levelswhich must be approved by the Ministry of Environment and across sectors has created frustration in many com-and Natural Resources (MARN). The application for munities and for the organizations that advocate on theirthe permit requires a plan for easement66 for land and behalf. The state does not seem to have elaborated coher-property required for the project development. This is ent institutional norms and plans for the different stateleft to the companies: “the interested party shall take all entities involved in the sector.steps and carry out the necessary negotiations for theestablishment of the easement that it must establish over Moreover, the relevant state entities and their functionariesthe public or private fincas (estate)” (article 37). Never- seem to have limited knowledge of the rights of indigenoustheless, the dominating practice of companies is to buy peoples and the commitments assumed by the state at theland themselves instead of getting permission from the international level. There is a lack of knowledge regardingowners of the properties to use the land in exchange for the binding character of ILO convention 169, requiring theindemnification. state to protect the rights of indigenous peoples. This leads to state institutions adopting positions and attitudes thatRelated to this is the question of access to and use of the may contradict the convention.judicial system. Whereas companies have the resourcesto make use of the system, as well as privileged access, From interviews and information in the press, it is evidentbased on alliances with decision-makers, the system is to that the Ministry of Energy and Mining in many instancesa large extent exclusionary when it comes to serving local regards community opposition as a hindrance to thecommunities. development of energy projects and lacks an understand- ing of the situation of many communities. The ministry has newly created a vice-ministry for sustainable develop- ment to develop community-based hydropower projects; distribute information about how hydropower projects function; and act as an intermediary between develop-66 Easement means the right to use land or property not one’s own or to prevent its owner from making an inconvenient use of it. 31
    • The Ministry of Energy and Mining (MEM) plays an important role in the sector, and gives the authorizations for the use of the rivers as under public domain (dominio público).ers and local communities67. The question remains as to been a challenge. In 2009, the ministry succeeded in push-whether the role of intermediary will better serve devel- ing through an important change in regulations, wherebyopers’ interests rather than protect the environment and community participation became a prerequisite for under-the interests of local communities. The vice-ministry has taking an EIA. The Ministry also said that they are workingemployed three regional representatives, of indigenous on how to get information to the communities, and thatorigin, who are to be in direct contact with local leaders they themselves will get more involved in this. The capacityand communities. The vice-ministry has been criticized of the ministry is another question; environmental organi-for promoting small-scale hydropower, with the objective zations and developers have both complained about delaysof improving hydropower’s image, as a stepping-stone to in response times from the ministry.developing larger projects in the future. The role of municipalitiesThe Ministry of Natural Resources and the Environment(MARN) is primarily responsible for the approval of envi- Municipalities and mayors play an important role in deci-ronmental impact assessments (EIAs). In an interview with sions to implement a project. First of all, projects cannotthe ministry, officials underlined the importance of com- be initiated before the municipal council has grantedmunity participation, but also acknowledged that this has the construction licence. This ostensibly gives mayors,67 Interview with a representative of the Vice-Ministry for Sustainable Development, August 200932
    • municipalities and communities leverage in negotiating 3.3 Project development:the details of a proposed project. Nevertheless, this is onlytrue if the mayor and municipal council are receptive to social, environmentalthe concerns of the community, something that varies and legal aspects68from municipality to municipality. 3.3.1 Project preparationThe risk of corruption and bribery is also present if aninterested company pays the mayor, development coun- The initial phase of the project starts with the idea forcil or local leaders to consent to a proposed project. The a project, and the identification of an appropriate loca-relationships between municipalities and communities tion. As mentioned, INDE undertook several studies ofbecome important, including whether communities are possible areas for hydropower projects at the end of theable to control and monitor their elected representatives 1970s which are available for interested developers. Basicthrough social control. In some instances, mayors defend pre-feasibility studies take into account economic, legalthe standpoint of communities, whereas, in others, they and technical aspects, topography, services and other basicare allied with business interests. information. This leads to the design of the project, includ- ing studies of environmental and social impact. Then fol-The National Association for Municipalities (ANAM) low the construction and operational phases.has emphasized the right of communities to be consultedand have also shown an interest in developing municipal A company needs several permits to start operation, andprojects, both in production and distribution. Within the the regulatory process includes: 1) obtaining temporarycurrent framework, municipalities get little income from permission (maximum one year) from the Ministry of En-these projects, as taxes are minimal. ergy and Mining (MEM) to access the areas and rivers for undertaking studies; 2) undertaking environmental impactMunicipal autonomy has been limited in practice. The assessments and submitting them to the Ministry of Natu-constitutional principle of prioritizing the social interest ral Resources and the Environment (MARN); 3) getting theover individual interest is used as a justification for the approval or comments from the Ministry; 4) presenting thestate’s policy of developing access to energy resources studies for public hearings; 5) obtaining final authorizationfor national development, whereas the municipalities and from the Ministry of Energy and Mining (MEM); and 6)communities’ interests are defined as individual interest obtaining a construction licence from the municipality.(art. 44). Thus, the argument can be said to have beenturned on its head and used to protect private economic Parallel with the initial project phase is establishing trustand business interests instead of serving social interests. in the community. With the limited role of the state, much is left to the companies. In a situation where the state is absent, many companies approach the communities68 Much of this section is based on Hirsch, C. (2010) The political ecology of hydropower development in Guatemala: Actors, power and spaces. Master thesis University of Life Sciences 33
    • directly, often hiring consultants or locals to help them get from the municipality. The construction can last for severalaccess and start the process of gaining confidence. This years before the plant enters the operational phase. Evidentis often done by hiring a local intermediary that is famil- from our talks with communities, but also with state actorsiar with the language, customs and the key local players, and companies, is the absence of the state in developmentwhose approval or acquiescence is considered vital for processes at local level.gaining authorization for the project. Other companieshire consultants from organizations specialized in localnegotiations and conflict resolution. 3.3.2 Benefits for whom?Some developers offer small projects at the preparation The principal arguments used by the government to sup-stage of a project, such as water pipes, construction of port the construction of new hydropower plants are theschools, churches or health centres, school materials, etc. need for cheap and “clean” energy; access to electricity forDistribution of project information varies and is often lim- poor, rural communities; and the contribution the plantsited and of poor quality. There are examples of companies would make to local and national development. Nationalentering communities and distributing false information electricity coverage in Guatemala is 83.5 percent. Theabout their presence in the area. In this phase, the com- numbers vary across counties and between urban andpanies also buy land from local residents. Environmental rural areas. Access to energy in some rural areas in Gua-impact assessments are conducted by a team of consultants temala is poor. The counties with the lowest coverage arewho are obliged to gather the opinions of local residents Alta Verapaz (37.4 percent), Baja Verapaz (69.6 percent)about the projects; this has often been done in a question- and Quiche (72.1 percent). These share the largest hydro-able manner (see section on EIAs below). power project in Guatemala, Chixoy, and are also among the counties where new hydropower projects are underAfter the studies have been completed, they are delivered preparation or construction.to the Ministry of Environment and Natural Resources,which has 60 days to make comments or approve the stud- Whether the communities are actually benefitting fromies. If the ministry fails to make any comments within 60 the projects is a contested topic. Developers are criticizeddays, the studies are, according to the law, automatically for earning their money on the backs of local communi-approved (administrative silence). If the studies are ap- ties, bribing leaders and contributing too few local benefits.proved, they are then published for an open hearing which Criticisms include that communities do not get access tolasts 20 days, and announced in a newspaper with national electricity as a result of the projects; nor do municipali-coverage. However, as there are no formal mechanisms to ties or communities receive any considerable income fromdistribute the studies to the affected parties, the studies projects. According to the Law of Incentives for Renew-may never reach the communities or organizations. able Energy (2003), companies can operate tax-free for ten years and are exempt from taxes for imported materials,If no comments are made by the public during the 20 days machine parts and other equipment.of the open hearing, the studies are sent to the Ministryof Energy and Mining which issues the authorization. In Developers argue that many local communities agreeaddition to this, the company needs a construction licence with the projects, and that they benefit in the form of34
    • River in the county of Quiche. Local youths fishing.new infrastructure, such as roads, a new school or health Access to electricityclinic, as well as small-scale productive projects, dentistservices, school materials or the construction of a bas- The construction of new hydropower projects does notketball court. They also argue that the project will bring necessarily mean that the communities get access to elec-local employment. Projects might bring jobs to some tricity. According to the General Law of Electricity, com-local residents in the construction phase, but stable jobs panies (generators) can choose to sell electricity directlyover time are unlikely due to low levels of education in to “large-scale users”, such as the maquila sector, industryrural areas. or the mining, or export it to neighbouring countries. In other words, there are no requirements for companies toThese possible benefits must be seen in a context where poor sell the energy within Guatemala. Also, companies them-people, with few opportunities, may go along with whatever selves are not allowed to distribute electricity directlythey are offered by the developers because of their grave situ- to local communities, as they are not the distributors,ation, and the lack of information about their rights and the and cannot favour the communities close to the project.possible consequences and impacts of such a project. Electricity for household consumers is distributed through the National Grid (SEN), either by the large distributionLocal communities are often not aware of their rights as companies, such as DEOCSA and DEORSA, or municipalcitizens, and in many instances, their rights as indigenous distributors. This means that projects will not necessarilypeoples. Many local communities are poorly informed and benefit local communities in terms of access to electricity.have little knowledge about these projects or their negative Whether electricity actually reaches poor communitiesor positive impacts. There are few mechanisms for local depends on the policies of the government, the distributorscommunities to secure access to information, and their and the rural electrification programme (PER).right to be properly consulted is neither respected norimplemented. Companies are accused of showing only one The laws of Guatemala oblige a distributor to supply anyside of the coin: the positive impacts of the projects. inhabitants within 200 meters of the existing power grid. 35
    • The community-based project in Chel provides electricity for the nearby communities. percent in 2008. But this is not because of privatization and liberalization, but mainly due to public investments in the sector. Private producers and distributors invest little in infrastructure for new connections, and in practice, the state subsidizes the private sector. In 2009, the Congress started discussing a possible loan from the Inter American Development Bank (IADB) of US$ 55 million to expand the programme. TariffsNevertheless, this is not complied with everywhere, and Many of the rural communities with access to electricitythere are also communities out of range according to this pay high prices for it. Today, Guatemala has the highestcalculation. Remote communities have to rely on the rural electricity tariffs in Central America. The prices may alsoelectrification programme (PER). These communities may vary, according to the distributor. DEOCSA and DEORSAalso include communities close to a hydropower plant, are the main distributors in rural areas. The tariff is basedwithout access to electricity. Since 1998 INDE has managed on a complicated calculation, and there is no price ceil-the rural electrification programme (PER), but the two ing on transmission. With privatization of the electricityprivate regional companies DEOCSA and DEORSA have sector, companies were allowed to pass on to users thebeen responsible for the implementation in field, financed variation in the purchase cost of energy70. As a result, be-with public funding. The programme includes transmis- tween 1996 and 2004, rural electricity tariffs increased bysion and distribution in the rural areas of the country, and between 60-80 percent. This has caused major protests inalso interconnection with Petén, which was realized in both rural and urban areas.2009. The plan was originally for five years (1998-2003),but 14 years later there are still delays and still mnay people A social tariff policy was introduced to shield house-and communities without access to electricity. holds from increases introduced by INDE in 1998 and implemented from 2000. With the social tariff, users thatIn five (of a total of 22) counties 30 percent or more of consumed less than 300 kilowatt-hours per month payedthe population lack access to the network; in ten coun- less, subsidized by the state. This affected 11 million peopleties 25 percent; and in six of the counties 10 percent. The and two million households. 89 percent of usersqualified3,500 communities (aldeas) that lack access are the poorest for the social tariff. Nevertheless, according to Foster andones, with more than 700 000 rural inhabitants, a major- Araujo (2004), this policy has done little to benefit theity of which are indigenous peoples69. At national level, poor. Many poor households remain unconnected to thecoverage has increased from 57.1 percent in 1996 to 83.5 grid, and households that consume small amounts only69 Ferrigno, V.F 2009. El Oscuro negocio de la luz. FLACSO. Guatemala City.70 Foster and Araujo 2004. “Does infrastructure reform work for the poor? A case study from Guatemala”36
    • accounted for 10 percent of the total value of the subsidy. plaints go unaddressed. The calculation of user tariffs isIn ten years, from 1999 to August 2009, INDE spent 3.9 complicated and hard to understand for users. Ferrigno as-billion GTQ on the social tariff; this amounts to 25 percent serts that the distributors fail to take account of cut-offs inof INDE’s budget71. the network and lack of service during certain periods. The high electricity prices and abusive practices of the compa-The social tariff clearly does not benefit those that are nies have provoked massive protests and popular resistancenot connected to the grid, who are often the poorest and to the distribution companies DEOCSA and DEORSA.most remote communities. Poor households withoutaccess spend a lot of money on candles and wick lamps, One of the aims of the privatization was to break thewhich can be even more expensive than electricity, as well monopoly of the state company delivering services. Inas using firewood. Foster and Araju argue that it would practice, though, only large-scale users can actually choosehave been better to finance new household connections their electricity provider. The government has also refusedthan paying for the social tariff. They also assert that the to set a maximum price on transmission. The national gridamount of money paid by the poor in rural areas for elec- (Sistema Nacional Interconectado) has been constructedtricity is disproportionate to their monthly income72. almost solely on the basis of consumer payments, but private companies are the ones benefitting. Lastly, some ofTransparency, contracts and privileges the companies are also priviledged with agreements that guarantee them payment in dollars and payment even ifAccording to Ferrigno (2009), the electricity sector lacks they are not producing.transparency and grants a number of privileges to compa-nies that users pay for. Following the increase in oil pricesin the 1990s, private companies started looking for op- 3.3.3 Control of territoryportunities in the hydropower sector. As we have seen, lawsand regulations in the sector underwent drastic changes in The expansion of the hydropower sector and other devel-1996. The same companies that pushed for these changes opment projects are putting the territories of indigenousare those with shares in the generation sector today. peoples and local communities under pressure. Hydro-Companies lobbied for reform in the sector, reorienting it power projects are not the only initiatives being promotedtowards a mixed system with private sector participation. in rural areas. Many development projects, including large-Today, private companies to a large extent manage the sec- scale monoculture plantations for agro fuels, mining activi-tor, with different privileges, often at the cost of users and ties, oil exploration and other large infrastructural projects,national and local interests. are threatening the territories of local communities.According to Ferrigno, there is a lack of transparency in Hydropower projects can create new conflicts or furthercontracts, transactions and user payments, and user com- complicate territorial conflicts that already exist in local71 INDE72 Figures until 2004 37
    • A sign in Quiche that reads: “No to the dam, yes to life and to nature”.communities. This is evident from many of the projects In many cases, intervention of the state and companiesthat we have studied. Companies acquire properties in has generated fragmentation of territory as well as discordvarious ways. With access to the legal system, lawyers and and conflict in local communities. Benefits are offered toresources, the companies purchase land either directly certain leaders or key decision-makers in the municipal-from individuals in local communities, buying from large ity. Communities that have fought for their land and builtlandowners, or by getting access to areas that are held by their societies there understandably resist relocation, espe-the municipality or the state. cially communities that have migrated or been displaced in the past by external interests or the war.Negotiations with individuals in local communities havetaken place on several occasions. The companies take direct Companies defend themselves by saying that they havecontact with families and individuals, negotiate prices with purchased the land legally. The problems here are mani-them, and buy the land. Many community members have fold. Firstly, the current legal framework permits com-sold their land without any legal advice. A further problem panies to purchase land directly from communities andis that the companies do not tell local communities what the local residents holding individual land titles and does notland will be used for. There have even been instances where oblige them to inform about the future use of the land.companies have given false information about the use of With the grave problems in Guatemala, with the lack of aland. The result is that the legitimacy of the use of the land land reform, unequal land distribution and a large part ofand the project itself can be called into question and that the land in titling processes, companies are managing toprojects may exacerbate the deep inequalities that exist with acquire land that could have been given to local communi-respect to land ownership in many communities. Many local ties if titling processes had been completed.indigenous leaders state that this also violates the collectiverights of the indigenous peoples, and that the whole commu- Secondly, there are diverging visions of territory and land.nity should agree when a plot is sold within their territories. Maintaining control over their territory is regarded by local38
    • communities as fundamental to assuring the continuity of already noted, Guatemala is rich in biodiversity, with manytheir livelihoods, traditions and cultures. Based on the rights different ecosystems. Over 30 percent of the country isof indigenous peoples, their territory is not only where designated as protected areas, underlining the importancethey live, but also the land they use and live off. In contrast, of assessing environmental impacts of projects. Neverthe-developers see the land as private property - a plot of land less, hydropower projects are planned both on the limits ofwhere they can do whatever they like within the borders of protected areas and within them. The Centre of Ecologicalthe property, and not take into account that the property Studies (Savia) has produced a map (see below) showinglies within an indigenous territory or with a neighbouring Guatemala’s rivers, the protected areas (marked with redlocal community close to the planned project site. There are lines), and many of the planned new hydropower projectsalso still communities that live on land owned by private (marked with numbers).landowners73. When the land is sold to developers, the resi-dents are left in a vacuum, with promises from the formerlandowner to get titles to the land they live on, which mayor may not be followed up by the new owner.Regarding water and rivers, developers argue that the sec-tion of the river being used for the project lies within theborder of their property, and therefore does not impactthe communities. This is also linked to what was presentedearlier; the lack of a management plan for land use, naturalresources and landscape planning, in addition to a waterlaw that takes into account indigenous needs, practices andrights. Water is treated as a private good, in contradictionto the constitution, and there is a lack of integrated waterand land management.3.3.4 Environmental impacts and EIAsThe potential environmental impacts of projects tend tobe downplayed both by government officials and de-velopers. The dominant discourse is that hydropoweris clean, renewable energy, seemingly regardless of thecontext. However, environmental organizations, expertsand community representatives are questioning this. As Source: Map elaborated by Savia, based on information published on http://www.investinguatemala.org in 2009. With permission to reprint73 Tenant laborers in e.g. Altaverapaz, called mozos colonos 39
    • Environmental flow environment. The studies are often undertaken during a short time period (usually three months), which meansAn unresolved question in Guatemala is calculation of the that the estimations of water flow have only been calcu-environmental flow of water in rivers where projects are lated for a certain period during the year, without consid-planned. Environmental flow can be defined as the flow ering seasonal variations. More importantly, the differentregime required in a river to achieve desired ecological or uses of the water are not taken into account.other objectives (economic, cultural or social), or as thevolume of water required to maintain river health in a Water used for hydropower depends on the type and sizeparticular state over time74. In environmental assessments of the project. If water is diverted for hydropower, theworldwide, the first calculations of environmental flows timing of flows downstream of the points where water iswere focused on the concept of a minimum flow level. returned is likely to be altered, and flows will be depleted inNevertheless, it has increasingly been recognized over the a bypassed section. In the case of run-of-river hydropower,years that all elements of a flow regime are important, and upstream water velocities may be affected and the schemethat any changes in the flow regime will influence the river itself could interrupt river connectivity76.ecosystem in some way.75 The environmental flow require-ments of rivers are related to a number of factors, such as Environmental impact assessments (EIAs)the size of the river, its natural state, and a combinationof the desired state of the river and the uses to which it is The preparation of environmental impact assessments input. Before being able to actually define flow requirements, Guatemala is governed by regulations for “Environmentalbroader objectives must be determined to indicate the evaluation, control and follow up” and procedures andtype of river desired. This means that river flows are set to terms of reference developed by the Ministry of Natu-achieve specific pre-defined ecological, economic, cultural ral Resources and the Environment (MARN). Article 80(spiritual) or social objectives. Functioning rivers and in the Law of Environmental Protection and Improve-ecosystems are important for the world’s biodiversity and ment (1986) states that studies to evaluate environmentalfor millions of rural poor people who live off natural re- impacts have to be undertaken if the project “can producesources. It is therefore essential to predict the consequences deterioration of renewable and non-renewable naturalof varying degrees of alteration of the flows in Guatemala. resources”77 or introduce modifications to the landscape or the country’s natural resources. Hydropower projectsIn Guatemala, there are no specific requirements related larger than 5 MW require environmental impact assess-to the estimation of environmental flows. Several projects ments. Studies have to be undertaken by approved and reg-state in their EIAs that the project will leave 10 percent of istered consultants, hired and paid by the companies, andthe flow of water, without elaborating on the consequenc- approved by the ministry. In 2006, there were around 250es. In many instances this could have grave impacts on the consultants and 14 consulting companies in Guatemala.74 Acreman & Dunbar 2004. Defining environmental river flow requirements – a review.75 Ibid.76 Ibid.77 “producir detorio a los recursos naturales renovabled o no” o “introducir moficaciones nocivas o notorias al paiseaje y a los recursos naturales del patrimonio”.40
    • The construction phase also impacts the local ecological context.The EIA process in Guatemala has several weaknesses, in topics such as environmental impact assessment,noted by many environmentalists and experts we spoke to control and monitoring of projects, and strategic envi-in the country, and also in regional and international stud- ronmental evaluation. The MARN does not see this asies, such as a study by CCAD and IUCN in 2006.78 Some of its task. The quality of the work will therefore dependthe weaknesses are: on each of the consultants and competence acquired elsewhere. The study highlights the need to improve the1) No available and complete list of EIAs prepared: system of capacity building for consultants. there is no official list of all EIA reports that have 6) No adequate EIA guidelines: Specific and detailed been prepared, nor are all studies made known to the guidelines for preparing EIA reports have not been public. To get hold of an EIA, one has to monitor the elaborated, and much is left to the consultants and daily newpapers and apply to the Ministry of Natural companies. Resources and the Environment, a process that may 7) Inadequate public participation: MARN confirms often take a long time. in the study that regulations demand public participa-2) Few rejected projects: According the CCAD study tion, but that this has not yet been fully accomplished. from 2006, the Ministry of Natural Resources and The study confirms that interviews with relevant the Environment (MARN) admitted that “a very low stakeholders are not included in the preparation of number” of projects are rejected. It can therefore be the studies, and that studies are not distributed to all assumed that many EIAs for projects with considerable affected parties for comments. This was confirmed impacts are approved. According to our interview with by MARN in our interview, but they stated that they MARN, they have recently begun to reject more studies. are working to improve information distribution and3) Cumulative impacts disregarded: the potential especially public participation. cumulative impacts of several projects in one area 8) Lack of technical and human resources: according are not taken into consideration, nor the country as a to MARN, the weak monitoring and follow-up is due whole. The projects are evaluated separately, although to lack of financial and human resources at the minis- their cumulative impact may be significant. try. The ministry reports that it is generally unable to4) No integrated land use planning: as stated earlier, respond in a timely manner. This was also confirmed there are no land use planning in Guatemala that inte- by our interviews with different companies and orga- grates environmental variables. nizations that have been in contact with the ministry.5) Lack of capacity-building for consultants: 9) Insufficient quality of EIAs: MARN states in the study Guatemala has a register of officially approved consul- that an improvement in the quality of presented EIAs tants that undertake environmental impact assessments. is necessary. The country’s biodiversity and different Nevertheless, according to the CCAD study, there are ecosystems are not sufficiently covered in many of the no requirements for capacity building of consultants studies.78 Guatemala Estudio comparativo de los Sistemas de Evaluación de Impacto Ambiental de Centroamérica. A study by the Central American Commission on Environment and Development (CCAD) and the International Union for Conservation of Nature (IUCN) from 2006 shows several weaknesses with the system of environmental impact assessment (EIA). The state authorities responsible for EIAs in the respective country, the Ministry of Natural Resources and the Environment in the case of Guatemala, were asked 150 questions. 41
    • Information and public participation in collaboration with companies, organize meetings with casually assembled community residents and describeThe studies must include a section on socio-economic these as information-sharing and consultations.conditions and public opinion about the project. Indig-enous rights are neither mentioned in the Environmental When the company has handed in the study to the minis-Law nor in the regulations or procedures. According to the try, they have 60 days to evaluate the environmental impactregulations, the studies are to be published in the language assessments. If they have not made any comments duringused in the area of the project79. According to our sources, the 60-day period, the studies are automatically approved.no studies have been translated into local languages. Clearly, in periods when many EIAs are submitted, the ministry may be put under pressure and there is a risk thatThe EIA regulations specify two important elements: “in- weak studies might be approved. We were also informedformation to the public” (article 33) and “public partici- that banks or other financiers of projects have pressuredpation” (Chapter XI). In relation to public participation, the ministry to approve studies as quickly as possible. Thisarticle 49 in the regulations states that the ministry should may also affect the quality of their evaluations.ensure public participation during the whole process ofenvironmental assessment, control and follow-up, both in Once the EIA has been prepared and approved, the minis-the initial phases of project design and preparation, as well try and the developers have to inform the public, with theas the operational phase. Article 50 states that the develop- objective of receiving additional comments and feed-ers of the project should involve the local population at back, including any opposition to the project. The publicthe “earliest stage possible”. The developers should develop can submit their comments up to 20 days after the EIA’sa plan for public participation together with the consul- release. Comments from the public need to be in writing,tants, considering how to encourage public participation, and have to be technically, scientifically and legally based.different forms of participation, ways to get information Based on information from the studies, consultations withto different sectors of society, how to handle requests for private and state entities, comments from the public andinformation from communities and environmental organi- their own control and follow-up, the ministry makes azation, and ways to resolve potential conflicts. recommendation to approve or reject the project.Both the regulations and the ministry place a lot of respon- According to the regulations, the ministry is responsiblesibility on the companies. The so-called participation pro- for both distributing information and facilitating publiccess is left to the companies and consultants, with the risk participation. However, the ministry appears to lack thethat these can use the weaknesses of the system to serve capacity and resources to follow through, and sometimestheir own interests. What often happens is that consultants, even the will to meet its obligations. Studies are seldom79 4.1 Instructivo de Procedimientos para las Evaluaciones de Impacto Ambiental42
    • Community meeting to give the local residents information about the hydropower projects in the area, organized by a local organization.distributed to communities, environmental organiza- from the concerned company, carried out interviews withtions or other interested parties, nor are studies translated different families in the municipality. What emerges frominto local languages. Communities and organizations reading the description of the meetings is that commu-have to monitor the newspapers themselves for notices of nity residents had already received donations from thenew EIAs, make requests to the ministry for copies of the company in the form of building blocks and constructionstudies, and even pay for them. The studies often run to of a church prior to the study. Interviewees confuse theirhundreds of pages, and 20 days is very short a time to be knowledge of the project with smaller benefits they haveable to read and analyse the studies, let the communities heard they can get or have already received. It is clear thathave their say, and then submit detailed technical, scien- the residents have very limited knowledge about the proj-tific and legal comments. As one environmentalist said; ect at the time of the interview. They have been poorly in-“the processes are designed to pass the studies through the formed, and at the same time have received donations. Thesystem as quickly as possible, to serve the interests of the companies could be said to be buying social acceptance.companies and the financers”. Company representatives also took part in the interviews.Manufacturing consent This may have had an adverse affect on residents’ willing- ness to express what they really think, either out of fear forAs already noted, the regulations for EIA studies require what the company could do to them or their families, or ina section on public opinion. To comply with this, consul- the hope of getting benefits. Many of the residents believetants often use a questionnaire to interview community that they will get benefits from the company. These perceivedresidents about their opinions about the project during the benefits include access to water and electricity, jobs, roads orstudy phase. After reviewing several EIAs, we found that the building of a bridge. These are not promises made by thethe questions put to community residents are often com- company, but simply what residents have heard or wish for.plicated, poorly formulated and often leading. Questionsasked to the residents during the phase of studies often Community residents are clearly concerned about the riverimply that there will be e.g. more jobs, electricity, roads drying up and other impacts on the river system and fish-and other benefits in the community, as a consequence eries, as they use the river for washing, bathing, water forof the project, when in fact there is nothing to indicate the animals and fishing. These concerns are downplayedthat this will be the case. More than asking the residents by the consultants in the final study. Some of the residentsfor their opinions, the studies serve to create social accep- also say that they do not know what a hydropower projecttance for the projects. In a number of EIAs, based on their entails, and that they want to get to know an existing proj-responses, residents clearly believe that the construction of ect before giving an opinion.the hydropower project will bring jobs to the community,and that access to electricity, as well as prices, will improve In sum, the residents talk about benefits they would like fromas a consequence of the project. the project, even though these may not be realistic. The con- sultants conclude that the residents do not oppose the proj-The Sisimite project in the county of Guatemala, munici- ect. However, residents can hardly be regarded as in agree-pality of Chuarrancho, can serve as an example, with its ment with a project when they lack the information necessaryEIA from 2008. Consultants together with representatives to consider the project’s pros and cons. In this particular case, 43
    • The small hydropower project in Chel is managed by the communitya referendum was held at municipal level in 2009 where the and can secure the communities’ access to electricity andresidents rejected the project; the project is still on hold. other benefits. Many communities and organizations we spoke to were positive to small projects, but underlinedAn important project underway in Guatemala is Hidro the importance of the communities’ participation in theirXacbal in the county of Quiche. Questions used by consul- management, and of their being “socios” (partners).tants in the Hidro Xacbal EIA (2005) include the following: The concern remains that the promotion of smallerWould you like more jobs in the village (aldea) or the community-based projects by the state and others cancommunity? be used to gain acceptance for bigger projects, without communities necessarily being aware of the consequencesDo you think you would have a better life if there were of the larger project. Local communities are brought inmore jobs in your village (aldea)? to see the Chel project, but this particular project cannot give a complete picture of how a hydropower project willDo you think the standard of living would be better in look like.your village with more jobs? Inadequate access to informationDo you think that opening new businesses, factories, andcompanies will benefit your village in terms of more work, Difficulties related to access to and distribution of infor-security, roads, income, energy and water? mation mean that communities and civil society actors are inevitably excluded from participation in influencingWould you like electricity in your village? aspects of the project relevant to their daily lives. There is no functional mechanism for ensuring that informa-Do you think that better roads will provide a better tion regarding proposed projects is widely disseminatedstandard of living for your village? amongst affected communities. Moreover, information is often incomplete.The consultants conclude that the communities are famil-iar with the project, that they support it and think that the Further complicating the issue is the multilingual nature ofproject will bring electricity to the communities, taking, as Guatemala’s population, as well as high levels of illiteracy,an example, a small community-based project called Chel. especially amongst indigenous groups. Environmental impact assessments are supposed to be translated into localEnvironmental organizations have accused companies of pay- languages, but this is not followed up by the companies oring for studies that serve their own interests, and of employ- the state.ing consultants that present projects in a favourable light. The information that does reach communities is largelyCommunity-based projects due to the efforts of local leaders and organizations, with the help of external actors or environmental organizations.Community-based projects can be good for local commu- Community leaders and local residents can spend months,nities if they are managed by the communities themselves, and even years, trying to get information about projects,44
    • Woman are active in the organizations to inform about the projects.with minimal assistance from government officials or com- and rivers, including human settlements and sacred places;panies. Presenting demands to different government insti- inadequate compensation; and inconsistent environmentaltutions can also be difficult. The processes are complicated impact assessments.and demand time and resources; this inevitably restrictsthe involvement of local residents. Lack of coordination Many people in local communities, including local leaders,by government institutions also hinders participation by have acquired a strong awareness of their rights. Many ofcommunities. the leaders we spoke to express that they are not against development; but against the current practices of imple-Asymmetrical negotiations menting projects without consulting local communities, including them in benefit sharing, and without seeingIn practice, local communities are largely left to them- them as “socios” – partners in development. The opposi-selves to negotiate with developers. In the few instances tion to hydropower projects is not opposition to hydro-where the state has been involved, its participation seem power per se, nor to development, but must be seen as partto be more to ensure a secure investment environment for of a broader struggle. Based on a history of land conflicts,companies, rather than to protect the rights of communi- forced resettlements, marginalization of indigenousties. The lack of organisational capacity in local communi- peoples, and exclusion from decision-making arenas, manyties and their limited access to information is exploited by local communities have simply had enough.companies, who use their economic power to leverage thenecessary political approval, regardless of the wishes of Communities feel under pressure from many quarters duelocal communities. Direct negotiations between companies to mining, agrobusiness and even protected areas. Changesand communities can therefore generate a series of dilem- in land use and poor land management, influenced by eco-mas. With an absent state and inappropriate mechanisms nomic and political interests, have an impact on commu-to reach legally binding agreements, communities are left nity livelihoods. The agrobusiness model of monoculturein a legal vacuum that renders them even more vulnerable. plantations has caused serious environmental and social impacts. The large-scale agro-export and monoculture model, which was previously concentrated in the southern3.4 Community resistance coastal region, has now moved to the north of the country, and local strategies80 where both sugar cane and oil palm plantations can be found. This is taking place in a context of evictions andMany communities are now opposing projects in Guate- forced purchase of land from impoverished communi-mala, and their message to foreign investors is clear: we ties that have to migrate to other locations. In protecteddo not want any projects in our area at this time. Com- areas, communities are labelled “invaders” and accusedmunities are demanding proper participation in decision- of destroying the natural heritage. With different types ofmaking as well as real and equitable benefit sharing. projects and activities, local residents suffer loss of landFurther arguments against projects include the social and for agriculture, forced land purchases, displacement andenvironmental impacts of projects on their land, territories forced migration.80 Much of this section is based on Hirsch, C. (2010) The political ecology of hydropower development in Guatemala: Actors, power and spaces. Master thesis University of Life Sciences 45
    • 46PROJECT Size, company Impacts/ Affected groups Resistance, conflict and critics Status Sources and furtherLocation and river readingXALALÁ Impacts: Inundations (7.5 km2) of lands, Community opposition No studies undertaken by the state yet. CIFCA (2008) reportIxcan, Uspantan and 180MW displacements, impacts on livelihoods, Lack of legal certainty of the lands No companies submitted bids, partly CONAVIGUA reportsChinique in Quiche No companies housing, access to food and water, fear Incomplete information from the state, because of the community resistance El ObservadorCoban in Altaverapaz to date has and concern in the communities unwillingness to distribute information The state is looking for other financers Observations andRivers: Chixoy, Copon submitted bids Lack of consultation with communities resources, possibly banks meetings with affected Affected: 18 communities, 14 000 persons Consultation held April 2007 Intimidation and threats to community communities Migrants, returned refugees and CPRs. 21.155 participated, 18.982 (89,73%) voted leaders have been reported Madre Selva Subsistence farmers. Over 80 % are against the project and mining in the area. Organizations have undertaken studies indigenous, majority q’eqchi about the impactsSISIMITE Impacts: 9.78 km of the river will end up Community opposition Project on hold EIA (2009) AsesoriaChuarrancho and 40 MW dry, affecting ecosystems, flora and fauna False information about land use EIA approved, despite community Manuel BasterecheaSalama, Guatemala Generadora and the people in the area. The most affected community was not opposition with legal and technical Asociado S.A.El Chol, Baja Verapaz Nacional (S.A) Dam constructed over geologic flaw, which included in the EIA to give their opinion, comments and 29 comments from Comunicado de PrensaRivers: Motagua may create risk of seismic activities Environmental flow not calculated MARN to be solved by the company (August 2009) Bribes MEM was to give authorization despite “Chuarrancho dijo “no a Affected: Three municipalities, especially Consultation held 2 August 2009 the municipality referendum, comments la hidroelectrica El the community San Buenaventura. 3319 participated, 2748 (82.7%) voted ny MARN and local opposition Sisimite” Dependant on the river for agriculture, against the project The company offered road, health clinic Observations and animals, fishing, recreation and domestic and potable water before referendum interviews with affected use. Mayas kaqchikeles and ladinos. Attempts to sabotage the referendum communities Attacks against involved organizations Press ConferenceCHIXOY Affected: 33 communities Community opposition Operating since 1983 Johnston, B. (2005)  San Cristobal, 300 MW COCAHICH 30 years after and still no compensation "Chixoy Dam LegacyAltaverapaz INDE, See the box about the case Lack of compensation for the affected communities Issues Study"Rivers: Chixoy/Rio EGEE - State See the box about the case The government has signed the report, Informe officialNegro but still not the Plan of reparation COCAHICHENTRE Impacts: Community opposition Stopped by the municipality, Advisors of the localRIOS/LANQUIN, 8,25 MW Inundation of area Lack of legal certainty of the lands referendum to be held in Lanquín. A communitiesSan Augustin Lanquin, Corrientes del Loss of access to water Affected communities not consulted pact has been made between the Observations andAltaverapaz Rio S.A Impact on local tourist activities Biodiversity not included in the EIA municipal authorities, the local meetingsRivers: Lanquin and Extraction of stones without permission development councils and communityChianay leaders against hydropower and mining.TRES RIOS, Impacts: Community opposition Norwegian investors withdrew. Others Observations andSan Pablo, Tacana, 50 MW Environmental flow Company bought the land without informing investors have decided not to invest. meetings in the areaTajamulco Hidroelectrica Water diverted in tunnels Little information about the projects Tres Rios are still looking for investors. COPAERivers: Canuja, Negro, Tres Rios 20 water sources affected False information about the use of energy NoradCabuz Consultation held April 2009 The Norwegian Embassy See the case page 63 rejection of the projectXACBAL Impacts: A table of negotiation was established. The Started operations in 2010. Participant of theChajul, Quiche 175 MW Local environmental impacts, use of the negotiation was between various community The municipality has been criticized for negotiation tableRiver: Xaclbal Xacbal land and access to land. Three new plants and local organizations and the company, negotiating separately with the company Universidad Landivar Generación are being planned on the Xacbal river. without the municipality and the state. Few in relation to land. publication 2009 Limpia benefits were given to the communities, Guatemala The project La Vega II consists of two except some small projects. The communities Communities are also opposing the (GLG) plants, one dam and one run off river. The demanded 10 MW three new hydropower plants to be built plant Sumalito is downriver from Vega II, in relation to Xaclbal. and the plant San Luis, is in the river above
    • Generación are being planned on the Xacbal river. without the municipality and the state. Few in relation to land. publication 2009 Limpia benefits were given to the communities, Guatemala The project La Vega II consists of two except some small projects. The communities Communities are also opposing the (GLG) plants, one dam and one run off river. The demanded 10 MW three new hydropower plants to be built plant Sumalito is downriver from Vega II, in relation to Xaclbal. and the plant San Luis, is in the river above Hidro XacbalPASABIÉN Impacts: The company was criticized for diverting Started operations in 2000 Pasabien company 12,8 mw Local environmental impacts water from the local irrigation system and for Company undertaken a water study to PressZacapa Inversiones contaminating the water test water quality Organizations Pasabién The municipality has demanded a new MARN has not followed up Madre SelvaRiver: Rio Hondo Environmental Study to be undertaken The mayor is protecting the residents Criticized for undertaking maintenance work and has not given the construction without notifying the affected communities license to the companyRIO HONDO II A former hydropower station was damaged Community opposition The company continues to work in the The company Rio HondoColorado, Zacapa 32 MW by Stan and was to be rebuilt. No new The residents had bad experience with other area to gain support through various Talk with communityRiver: Rio Hondo Hidroelectrica studies were undertaken. projects in the area similar practice campaigns and small projects (school representative Rio Hondo The project was rejected in a referendum and health) Press S.A. in 2005 The company has established a Rio Hondo Fund The mayor is protecting the residents and has not given the construction licenseEl PUENTE 27 MW Community opposition Not approved by MARN 010909 –MARNJocotan, Chiquimula Generación resolutionZacapa LimpiaRivers: Rio Grande Guatemalaand Jocotan (Unin Fenosa)EL OREGANO O: 120 MW Affected groups: Chorti population, ladino Community opposition Caparjá – Not approved by MARN 060809 –MARNand CAPARJÁ C: 57 MW peasant population Little information about the projects ‘New Day’ (Nuevo Dia) Chortí resolutionJocotan and Camotan Desarrollo de Little willingness from the company to spread Campesino Peace BrigadeZacapa and Generación Impacts: information about the project Central Coordinator, part of Agrarian InternationalChiquimula Eléctrica y Severe environmental impacts No consultations about the projects Platform have been threatened after Meetings andRivers: Rio Grande Manejo de working with information distribution observations in the area Recursos about the projects Naturales Las Tres Niñas SA El Oregáno was rejected. MARN and MEM undertook a new study due to pressure from companies and congress members, and are calling for the communities to negotiate with the company. The resistance persists.EL VOLCAN 26 MW Community opposition The community Chiacté, property Comunicado (2009)Cahabon, Lanquin and Generación No consultation has been undertaken with the holder of the land where the machine El Peublo Maya Q’eqchi’Senahu, Alta verapaz Limpia affected communities house is to be constructed have been !Rechazamos laRivers: Chiacté, Guatemalal Legal uncertainty about the lands opposing for three years. The people of Hidroelectrica El Volcán!Cahabón and Lanquín (Union Chiacté are being pressured to sell their Fenosa) lands.PALO VIEJO Lack of consulation Threaths from municipal authorities and Denuncia ante CIDHCotzal, Quiche 85 MW No means of reparation securitee committees (2009)River: Cotzal, Chipal, Agricola No means for integrated development Militarization in Santa Avelinael Regadio y Arrollo Cafetelera No respect for Indigenous Rights Death of two youths from MojomayasEscondido Palo Viejo47
    • The people of Chuarrancho protesting against the project Sisimite in front of the Congress.3.4.1 Energy sovereignty during the last few years. Especially for mining projects, and also some hydropower projects, consultations haveThere are growing calls for a return to energy sovereignty in been organized at local level, in accordance with the legalGuatemala, with the state as the main actor in the electric- framework and their rights as indigenous peoples. Theity sector and a guarantor of social interests. In 2009, a large legal basis of the consultation processes are ILO Conven-movement, numbering thousands of people in fifteen dif- tion 169, especially articles 6 and 7, and the Guatemalanferent states, protested against the distribution companies Municipal Code (2001) which specifically addresses localDEORSA and DEOCSA, and demanded that the Spanish consultations. These mechanisms have now been used bycompany Union Fenosa leave the country, as well as calling several communities in Guatemala, exercising their rightsfor nationalization of the electricity sector and the creation as citizens and voicing their opinions through democraticof municipal energy companies with social control.81 The means about the projects that are planned or underway inmovement called for full nationalization of the sector, from their territories.production to distribution, back into the hands of INDE,the state institution created for this purpose. The Municipal Code includes neighbourhood consulta- tions (”consultas vecinales”), through which local commu-The movement’s grievances include high prices, suspen- nities can give their opinion about development projectssion of services, subsequent damage to electrical equip- that “affect all the citizens of the municipality”. By law, thement, and economic losses suffered by local inhabitants. municipality is obliged to engage in consultation with resi-The conflict has involved the use of armed force, the arrest dents if local organizers are able to collect the signatures ofof local leaders82 and even the killing of a local leader, Vic- 10 percent of the local population.tor Galvez, in October 2008. From 2005 to 2009 over 35 consultations were undertakenAlthough INDE has been weakened financially, techni- at municipal level related to mining and other develop-cally, materially and legally, it still offers the lowest prices, ment projects, and three on the question of hydropowereven with the operation of dams from 1934. According development Between 500,000–700,000 people haveto INDE’s trade union, the workers assert that the public participated in the consultations, which were arranged bycompany is fully able to manage more projects and are municipalities in collaboration with local developmentcalling for a publicly driven company. councils, local grassroots organizations, such as unions, teachers’, peasants’, indigenous or church networks, and in some instances with support from environmental and hu-3.4.2 Popular consultations man rights NGOs.In response to the lack of measures taken by the state The consultations last several months, during which theand the inexistence of appropriate mechanisms, the actors involved disseminate information about the projectscommunities have taken matters into their own hands in question. Information is spread through local assemblies,81 http://estamosdefrente.blogspot.com/2009/03/una-sola-voz-el-pueblo-dijo-fuera-union.html82 Malacantan San Marcos48
    • house visits, posters, theatres and other public activities. 3.4.3 Rio HondoNevertheless, information about the projects can be poor. In 2005 the municipality of Rio Hondo and civil soci-The final referendum is organized during the course of a day, ety organizations arranged a consultation with residentsusing different methods, including a ballot paper, designed regarding the Rio Hondo II hydropower project on thespecially for the case in question, and community assemblies Colorado river. The project, owned by the company Rioheld according to traditional community law. Communi- Hondo, involved rebuilding the machine house that hadties are asked whether they accept mining, hydropower or been destroyed during Hurricane Mitch. Negative experi-oil extraction activities in their municipality. Local, national ence with another hydropower project in the area led toand international organizations have taken part as observ- residents voting against the project, and, to date, investorsers. All the referendums to date have rejected mining and have not been able to start construction due to the lack of ahydropower activities. Most of the consultations have been construction licence from the municipality.conducted in Huehuetenango, San Marcos and Quiche. However, the Sipakapa and Rio Hondo consultationsThe first consultation process on indigenous territories came under attack, with the companies accusing them oftook place in 2004 in Sipakapa, San Marcos, related to the being unconstitutional. The Constitutional Court ruledMarlin mining project owned by the Canadian company that article 27 in the regulations for consultations was un-GoldCorp. The second consultation was undertaken the constitutional by declaring that the results were binding.same year in the mestizo area in Rio Hondo Zacapa, re- While acknowledging the right to consultation, the Courtgarding a hydropower project. This consultation involved a ruled that the results of consultations are indicative andformal election process with ballot papers. non-binding83.83 Sentence from the case of Sipakapa from May 8th. 2005 49
    • The Court also determined that municipal councils lack in 2008 with the aim of implementing social projects andthe authority to organize consultations or establish that has supported communities with dental care, housing, re-results are binding within its territorial jurisdiction. modelling of a school and food distribution. CommunitiesThe Constitutional Court restricted municipal councils’ can present projects for consideration by the foundation.authority to decide matters within their territorial jurisdic- The company claims that more and more communitiestion or support the will of its communities. In effect, this are changing their position and are now in favour of themeans that municipal councils cannot ban a project based project.on the result from the local consultations84. Environmental and popular organizations accuse the com-According to lawyers cited in a CONAVIGUA report, the pany of buying the support of poor local residents with theConstitutional Court passed these rulings in open viola- projects that are being implemented. A local leader told thetion of constitutional norms that grant autonomy to the authors that the same opposition still exists, but that themunicipality and assert its right to decide matters within company is working hard to convince local residents. Theits own territorial jurisdiction. The report also shows how current mayor was re-elected in 2007, largely because ofthese rulings completely contradict another Court ruling his support of the communities’ opposition to the project,regarding the case of haulage contractors vs the municipal and the construction licence has still not been given to thecouncil of Guatemala city. In this case, the Constitutional company.Court ruled that the municipal council has the power todecide upon matters within its own territorial jurisdiction.The report argues that this demonstrates discrimination 3.4.4 A break with the liberal modelof local communities and their municipalities in favour ofcompanies in the cases of Sipakapa and Rio Hondo. Consultations and hearings have always been part of tradi- tional community life in Guatemala. In local communitiesSince the rulings, the company has continued to operate decisions are often legitimized through socialization ofin the Rio Hondo area, disseminating information about information, dialogue and consensus.clean energy and implementing various social projects inthe area, hoping that residents will change their minds. In this sense, local consultations can be said to break withThe projects include a school expansion and provision of “liberal democracy” and the official election system. Manyschool materials, dental services for children and comput- of the consultations are based on trust in the communi-ers. In April 2007 the company opened an information ties and open communication about residents’ opinionscentre85, and by November 2009 had carried out seven regarding projects. Many see the official election systeminformation campaigns. The company is also involved in and political parties as remote and alien to their lives, withcommunity sports events and has helped to provide local voting done in secrecy and strong controls throughout thefootball pitches. The Rio Hondo Foundation was created process86. The official system presents many people from84 Constitutional Court Files 1408-2005 and 2134-200785 Centro Informativo Ambiental86 Conavigua report50
    • local communities with a series of barriers to participa- consultations are ignored by the state and the companies.tion, including the need for identification papers, registra- When the state refuses to acknowledge the legitimacy oftion and long-distance travel. Women, in particular, lack consultations, local frustration towards the state and pri-identification papers, and often have difficulties in leaving vate actors may increase further.communities to take part in official voting process. In 2009, after the case of San Juan de Sacatepéquez, theIn community consultations, people express their opinions Constitutional Court ruled that ILO Convention 169 haswithin their communities, raising their hands in public. the same hierarchical level as the constitution. The CourtPeople without identification papers and those not reg- recognized that indigenous rights, as presented in ILOistered in the official voting system can also express their Convention 169, form part of the list of human rights setopinions. Social control in the community assures that out in articles 1 to 149 in the Guatemalan constitution.people voting are people from the community. Children This should mean that all concessions and licences must beand youth are also allowed to vote, as they are considered consulted on before approval. Prior consultation applies toto have the right to participate in a matter that affects them the authorization of licences for mining and hydropower,and their future. By doing so, they also assume responsi- as well as laws, regulations and public policies in the ter-bilities as part of the community. ritories of the Maya, Garífuna and Xinca. It remains to be seen how the ruling will affect the government policies andConsultations have facilitated the distribution of informa- current practices.tion about development projects, including their impactsand risks, as well as general information about the environ-ment and natural resources in the country. Communities 3.4.5 Persecution of leaders andare demanding information, and are demanding that their criminalization of social protestvoices be heard. Communities are now more alert to whatis happening within their territories. They have managed Developers and government institutions88, with good helpto raise issues at national level, including environmental from the media, dismiss the communities’ response asproblems, impacts of projects, the actions of companies “radical”, accusing them of being “anti-development”, andand the rights of communities to decide over their natural “saying no just to say no”. They also accuse environmen-resources and territories. tal and other organizations of stirring up opposition and spreading false information in the communities. ActivistsCommunities have continued to organize consultations, and local leaders that have opposed large-scale develop-in spite of the ruling of the Constitutional Court, dem- ment projects in their areas and those that have workedonstrating their desire to make use of democratic mecha- for local consultation processes have been slandered innisms that exist in law to demand their rights. But the the press as “terrorists”, “communists” and “guerrillas”89.88 Not all state entities expressed this, the Ministry of Energy and Mining is the main source of this argument89 Press monitoring January 2009 to August 2009 and interviews with various organizations 51
    • 52
    • Demonstration against mining. The head band reads: No to mining, yes to the environment.Organizations also claim that other organized groups are to protect themselves. Laying charges against companies isundertaking violent acts and sabotage to discredit the almost impossible; several organizations accuse the systemmanifestations and protests of the social organizations, and of being discriminatory against indigenous and local com-later accuse them of the acts90. munity residents.This criminalization is followed by persecution, intimida- The violent suppression of social protest is a growing con-tion and discrimination, which can be seen at different cern. Protests have been suppressed by the military, police,levels. First, comes discrediting of protest with the line that private security forces and paramilitary groups. Local lead-the communities are “against development” and “don’t ers and organizations involved in social protest, informa-know what’s good for them”. Interviews and observations tion campaigns and consultations have been subjected toconfirmed that this is a perception held by both company persecution, threats and intimidation and, in some cases,representatives and government officials. Then, there are have been murdered. Many community leaders can nothe accusations made against local leaders and activists for longer go out in public, and are restricted to their homesboth minor and more serious crimes that may or may not or communities. Organizations have accused powerfulhave been committed by them, and the use of the security interests of using these threats to scare off activists.forces and unlawful arrest. Several organizations were questioned about their ownA systematic characterization of resistance as “terrorism”, experience of criminalization and persecution, and, wor-“intrusions” on private property, civil disturbance and ryingly, were all able to provide examples. This experiencedamage to public property, is also presented in the media. was also borne out in meetings in the communities, andAccording to our sources, companies and financiers have has been reported by Peace Brigade International in Gua-close ties to the media, which is used to spread biased temala. Activists and local community leaders, involved ininformation to protect the interests of developers. protests against hydropower and mining, as well as the case of DEOCSA in San Marcos, were able to confirm incidentsAnother important aspect is access to and use of the legal of persecution, arrests and attacks on activists. Here aresystem. Local leaders have been accused of public disorder, some examples:damage to private property, land occupations, and evenmurder, with orders given for their arrest. The activists • A local priest in Zacapa, José Pilar Alvarez Cabrera, waswho are arrested or accused seldom get a fair trial, and arrested in January 2009 after helping communities tocases are apparently prioritized only when companies press protect forests, water and biodiversity in the area of thecharges against community leaders and indigenous or Las Granadillas mountain. Environmental organizationsother activists. The system works well to protect compa- claim that the police, the district attorney of Zacapanies, and resources are allocated to carry out investigations (MP) and the judiciary have become instruments of thein these cases. Poor community residents have few means landowners against the communities91.90 See e.g. press release from UDEFEGUA reprinted in Peace Brigade International report March 2010.91 http://www.madreselva.org.gt/index.php?option=com_content&view=article&id=59:una-vez-mas-sistema-de-justicia-criminaliza- a-quienes-ejercen-derechos-&catid=1:ultimas-noticias&Itemid=50 53
    • • The director of the environmental organization CALAS slandered in the press. An official at the Ministry of was victim of an armed attack in September 2008. He Energy and Mining (MEM) distributed flyers to discredit was shot seven times, but luckily survived. Both the the organization, their members and the referendum director and the organization’s coordinator for political campaign in Chuarrancho. and legal work continue to receive threats92. • The situation in San Marcos has been especially grave.• On the 15th of March 2009, two youths from the Mayan 250 local residents who demonstrated against the com- youth organization Mojomayas were killed in a hit-and- pany DEOCSA were arrested in 2009. There have also run incident involving a car from the company Hidroeléc- been three states of emergency declared in the county and trica Palo Viejo in the community of Santa Avelina, several murders of local inhabitants involved in protests. Quiche, after having been involved in protests. Threats Tensions exist in the seven municipalities affected by the have also been made by municipal authorities and local se- conflict: San José el Rodeo, Tacaná, San José Ojetenam, curity committees against protest leaders that have worked San Pablo, Malacatán, La Reforma and Nuevo Progreso. to spread information about the rights of indigenous Three activists from the Resistance Front for the Defence peoples. Furthermore, the community of Santa Avelina of Natural Resources and People’s Rights (FRENA) were has been militarized, with the establishment of a military killed in what are still unclear circumstances. The first posse in August 2008, creating fear in the communities93. victim was Víctor Gálvez, killed on 24th October 2009 in Malacatán. Evelina Ramírez, a FRENA representative,• A lawyer in Mojomayas has received phone threats was killed in Ocós on 13th of January 2010 and four against himself and his family and had a gun pointed others were wounded. They were returning from Gua- at him from a passing car94. The office of the organiza- temala City after meetings with government authorities tion (Mojomayas and Conavigua) has been wathced by in which they had demanded the suspension of the state unidentified persons, and various members have been of emergency in San Marcos, the expulsion of the Unión victims of threaths and agressions. FENOSA company from the country, and the prompt clarification of the murder of Victor Gálvez. On the 17th• Community leaders involved in the protests against the of February 2010 Octavio Roblero was killed in Malaca- project of Xalala have received various threats95. tán. Officials blame armed gangs and drug trafficking96.• The environmental organization Madre Selva has been • The DEOCSA company cut electricity in several accused several times of being terrorists, and has been communities in San Marcos on the 15th of December92 Reprinted in Peace Brigades International report April 2010. For the montly report see: http://www.pbi-guatemala.org/field-projects/ pbi-guatemala/publications/monthly-information-package/93 Denunciation by CONAVIGUA 10th of July 2009. Denuncia Ante Relator Especial sobre Derechos de los Pueblos Indigenas, Comisión Interamericana de Derechos Humanos CIDH. Violación del derecho al Territorio y la Vida del Pueblo Maya Ixil por construcción de la Hidroelectrica denominada “Palo Viejo” en Territorio de San Juan Cotzal, el Quiche.94 Peace Brigades International report April 2010 and personal communication95 Confirmed by community leaders from the area and other organizations96 Peace Brigade International report March 201054
    • 2010. On the 18th of December, access routes lead- • Peace Brigades International in Guatemala reported in ing to the municipalities of El Rodeo were blocked by April 2010 that during the past five years trade unions protestors who objected to the tariff increases charged have experienced constant persecution and acts of by DEOCSA. More than 110 police officers from the violence. “More than forty union workers were killed Fuerzas Especiales division of the Policia Nacional Civil between 2005 and 2010 in Guatemala. According to sta- and 200 soldiers were sent in to clear the roads and tistics from the Interior Ministry, the National Civilian safeguard the INDE headquarters97. A state of emer- Police and the Guatemalan Indigenous and Campesino gency was declared on the 22nd of December, and was Trade Union Movement (MSICG), 2009 was the worst further extended twice, on the 4th and 14th of Janu- year with 16 union members killed. During the same ary 2010. A curfew was imposed, suspending popular period (2005-2010), 132 union members suffered threats protest and putting the area under the control of the and attacks, with the majority (76 cases) also taking armed forces. place in 2009. According to the Committee for Trade Union Freedom, 93% of the workers killed were “in con-• UNION FENOSA and DEOCSA have been accused of flict due to complaints they had made relating to labour cutting electricity to several communities and destroy- rights or access to natural resources”. ” ing power stations. An engineer, Angel Garcia, has been accused of sabotaging one of the power stations.98 On • Indigenous and campesino (peasants) organisations, the 22nd of October 2009, in Nuevo Progreso, four members of the National Coordinator of Campesino employees of the security company Cobra, working Organisations (CNOC), have denounced the increase in for UNION FENOSA, were found cutting high voltage killings of their leaders linking them with ongoing land- cables and were apprehended by local residents. The related conflict that the state has been unable to resolve100. workers were taken to the Public Prosecutor’s Office (Ministerio Publico - MP) and accepted that they were • The Campesino Unity Committee (CUC) has demanded sabotaging the electricity lines. On the 1st of Decem- that the justice authorities clear up the illegal evictions ber, UNION FENOSA workers, with the support of the and abuses occuring against indigenous and campesino army, removed five transformers that supply energy to communities. In 2009, 27 families were violently evicted 38 communities. In none of these cases has the MP laid in Coban, Alta Verapaz, by a contingent of 400 police, 40 charges against those involved.99 The national and local soldiers and 50 farm workers and the alleged proprietors press, radio and TV have, instead, portrayed the people of the farm estate. The security forces destroyed every- of San Marcos as saboteurs and responsible for the thing they found, cut down large extensions of crops and problems related to electricity supply. demolished homes with power saws101.97 http://www.thefreelibrary.com/GUATEMALA%3A+RISING+DISCONTENT+AGAINST+ENERGY+COMPANY+UNION+ FENOSA.-a022338976698 Prensa Libre July 12th 200999 http://resistance-mining.org/english/?q=node/162100 Peace Brigades International report September 2009101 Peace Brigades International report August 2009 55
    • Demonstration in Guatemala City• Members of the organization New Day, who have been and have always been, subjected to repression by the state involved in information campaigns related to three and their allies through direct threats, persecution of lead- hidroelectric plant in Zacapa since 2006 - El Oregano, ers and the killings of community leaders. Being accused of Caparjá (both managed by the company Tres Niñas) and being terrorists is historically loaded, with all the accom- El Puente (company GLG) - have received threats and panying emotions, as this was what leaders were accused of attacks that they relate to the work they carry out. In during the armed conflict”. September 2009 one of their members was the victim of a gun attack close to the community102. Another indigenous leader said this: “The people stand up and defend their environment. They are not asking forThese are just some examples of what activists and com- anything else but to defend a territory, to defend naturemunity leaders in Guatemala are experiencing. The activ- and the rivers.”ists involved are not working for individual or financialinterests, but to protect nature (Madre Tierra), their land In official circles and in the media, the protests are pre-and the rights of the people and the communities. As one sented as a threat to society, and the protesters as danger-activist explained, “I am not afraid. I have the courage to ous or terrorists. Little is said about the peaceful andcontinue what I am doing because I know that this is the democratic methods used by the communities, such asright thing. This struggle has a historical commitment with the information campaigns, consultation processes, pressthe people, and my children have to know that, if some- conferences, letter-writing, meetings with ministries andthing ever happens to me, it was for Mother Earth and for peaceful marches. Social protest must be understood in athe people. Community leaders that are fighting to defend context where communities have few arenas to voice theirtheir land, territories and their natural resources are being, claims.102 Peace Brigade International report March 201056
    • 4 Norwegian ContextThis chapter aims to provide an overview of Norwegian to prevent foreign companies gaining permanent controlpolicy related to hydropower and “clean energy” projects over water and energy resources. The Norwegian right ofand the role that Norwegian actors play in the develop- reversion applies only to private ownership and ensuresment of energy projects in developing countries. We will that ownership returns to the state after 60 years. A powerfocus on how Norwegian policies interact with indigenous station is considered private if public ownership is lessrights. A brief outline of the hydropower sector in Norway than two thirds.will also be presented in order to contextualize Norwegianactions in developing countries. Key elements of Norwegian hydropower policyAlmost all of Norway’s electricity supply comes from • Water is a public goodhydropower. Norway’s ample hydropower resources have • Public companies are granted concessions without abeen developed for the benefit of Norwegian society over time limitthe past hundred years. The proportion of energy use ac- • Private companies are granted concessions with a timecounted for by electricity is considerably higher in Norway limit; ownership reverts to the state after the con-than in other countries, and electricity is used to a much cessionary periodwider extent for heating buildings and water. Well over • Affected parties are included early on in decision-50 percent of Norway’s energy consumption derives from making processeshydropower. Over the years, the power sector has been • Equitable benefit-sharingsubject to increased regulation and today, the develop-ment of a hydropower project is a lengthy process. Stricteconomic, social and environmental impact assessments Hydropower is widely regarded in Norway as a cleanare conducted, with the participation of all affected parties. energy source. Norwegians have experienced relativelyLicence fees, taxes and entitlements to purchase a share of few negative social and environmental impacts of hydro-the power generated are part of a framework in which all power development, compared with many other countries.affected parties share in the benefits. Norway has undergone a long process of development in the sector, and deliberations about the legal frameworkNorwegian municipalities have done well from hydro- and licensing procedures have involved all affected parties.power. Power companies are either run by the munici- However, there have been exceptions. The constructionpality or the state, and a considerable share of earnings of the highly contentious Alta power plant in Northernremains in the municipality and is reinvested there. In Norway is an example of how easily economic interestsaddition, municipalities are entitled to purchase up to 10 can trump the interests of the local indigenous population.percent of the electricity produced at cost price for local Widespread opposition to the Alta project by the indige-development. nous Sámi people led to major changes in the way the Nor- wegian government interacts with the Sámi. The projectThe right of reversion (“hjemfall”), in which a hydropow- was completed, but the fallout from the conflict includeder installation reverts to the government free of charge an increased awareness of indigenous issues amongst thewhen a licence expires, is another important principle Norwegian population and the establishment of the Sámienshrined in Norwegian law. The purpose of the law is Parliament. 57
    • 4.1 Norway on energy To achieve these goals, the government aims to support an increase in the involvement of Norwegian businesses in de-In Norway, it is generally accepted that large-scale hydro- veloping countries by means of publicly-funded assistancepower development has gone as far as it can, and hun- schemes and public-private partnerships105.dreds of rivers have been declared conservation areas forenvironmental reasons. However, there is now increasedfocus on exporting Norwegian hydropower technology The Norwegian Investment Fund forand expertise overseas, with investments in developing Developing Countries (Norfund)countries becoming increasingly attractive. Climate issues,together with clean and sustainable energy production Norfund is a private equity and venture capital companyand consumption, are high on the Norwegian domestic established and owned by the Norwegian state through the Ministry of Foreign Affairs. It operates in accordanceand foreign policy agendas. A key element of government with Norwegian development policy and receives fund-policy is to put Norway at the forefront of renewable ing from the development assistance budget. Some of itsenergy development, both at home and abroad. Numerous investments are made directly in local companies, togethergovernment documents emphasize these ambitions. with industrial partners, and others through investment funds and financial institutions in the countries concerned.The ruling coalition’s political platform, known as the Norfund helps to lower the threshold for Norwegian com-Soria Moria II Declaration, asserts that “the Government’s panies considering investment in developing countries. Thevision is for Norway to become a world-leading energy objective of Norfund is to contribute to economic devel-nation” and that “the Government shall also use its energy opment in poor countries through profitable investments.policy actively to reduce the emission of greenhouse gases Its largest single investment is in the energy company, SN Power, a joint venture with the state-owned energy utility,in Norway and in other countries.” (p. 64) Statkraft.Recent government white papers are more explicit on therole of hydropower: “Norway intends to play an active rolein the development of new renewable energy sources thatcan replace today’s fossil energy carriers. We can provideexperience of hydropower that will be useful as the world 4.2 Norway on CSR andseeks to shift to cleaner sources of energy103.” Moreover, development cooperation“Developing countries both need and have a legitimateright to better access to energy. Norwegian companies can Assistance to the private sector is not without strings.contribute to more environmentally friendly energy solu- Government expectations of private sector involvement aretions through innovation and technology transfer104. elaborated in the Soria Moria II Declaration:103 Report No. 13 (2008-2009) to the Storting: “Climate, Conflict and Capital”, p. 14104 Report No. 10 (2008–2009) to the Storting: Corporate social responsibility in a global economy, p. 60105 The support schemes include an advisory office established by the Norwegian Agency for Development Cooperation (Norad) and the Nor- wegian Investment Fund for Developing Countries (Norfund). This provides information both on the support available from Norad and Norfund, but also from other institutions, such as the Norwegian Guarantee Institute for Export Credits (GIEK) and Innovation Norway.58
    • “The Norwegian government shall: strengthen co- Another important document governing Norwegian operation with Norwegian business and industry to development assistance to the energy sector is the 2006 contribute to increased investments in poor countries, Norwegian Action Plan for Environment in Development and set clear demands so that the International Labour Cooperation. As the Action Plan points out: Organization’s core conventions are respected and that investments contribute to positive development. “Energy is essential for both social and economic Norway shall be a leading country in working toward development. Providing better access to reliable energy global standards for business and industry’s social services at prices that are affordable to poor people is responsibility.“ (Soria Moria II Declaration, p. 10) crucial to achieving the MDGs. Simple, decentralised solutions will play an important role.”As the CSR white paper points out, the government “ex- (Action Plan, p. 17)pects companies to respect fundamental human rights, in-cluding those of children, women and indigenous peoples, The Action Plan goes on to list different measures thatin all their operations, as set out in international conven- will help “improve poor people’s access to clean energy”,tions”106. The white paper on Norwegian development including supporting the development of biomass, windpolicy, meanwhile, sets out that the government will “seek and solar energy; supporting the development of smallto ensure transparency in the management of natural re- power plants in conjunction with solutions; and support-sources and that local communities, including indigenous ing measures designed to improve energy efficiency.peoples, have access and rights to land and resources.107”. Local communities and the rights 4.3 Clean Energy for of indigenous peoples Development Given indigenous peoples’ dependence on the natural en- vironment and resources, environmental considerations The Clean Energy for Development Initiative, designed and respect for the rights of the indigenous population to enhance Norwegian support to the energy sector in must weigh heavily in areas where indigenous peoples live. developing countries, was approved by the Minister of There have been a number of instances where Norwegian the Environment and International Development in April business interests have come into conflict with the use of 2007. The initiative aims to strengthen links between the the environment by indigenous groups. It is therefore vital environment, climate and energy in Norway’s international to consult and involve indigenous and local communities development cooperation and provide a framework for all when planning activities that may affect their interests. Norwegian aid to the energy sector. As well as focusing on Report No. 10 (2008–2009) to the Storting: Corporate social long-term administration of natural resources and efficient responsibility in a global economy, p. 51 energy use, the initiative aims to help improve “access to clean and affordable energy in partner countries.”108106 Report No. 10 (2008–2009) to the Storting: Corporate social responsibility in a global economy, page 35107 Report No. 13 to the Storting: “Climate, Conflict and Capital”, p. 48108 Led by the Ministry of Foreign Affairs, the initiative has a “project group” comprising representatives of the Ministry of Foreign Affairs, the Ministry of the Environment, the Ministry of Petroleum and Energy, Norad and Norfund. The secretariat is housed within Norad. 59
    • The Clean Energy for Development Initiative, together In contrast, SN Power, the hydropower investor jointlywith the Oil for Development Initiative, are both con- owned by Norfund and the Norwegian power utilitysidered important elements of Norway’s overall energy Statkraft, received 1.2 billion NOK from the Norwegianpolicy. According to Erik Solheim, the Minister of the government in 2007 to support energy developmentEnvironment and International Development, Norway projects. The sum allocated to SN Power was equivalent toshould concentrate on “what we’re good at”. Oil for Devel- 70 percent of total Norwegian development aid earmarkedopment is an example of the practical implementation of for energy projects that year. In 2008, hydropower receivedthis policy, whereby Norway contributes capacity build- 97% of allocations to energy generation projects.110 A pal-ing measures in other countries, based on Norway’s own try 3% went to biomass, wind and solar energy.experiences in the sector. The Clean Energy Initiative is setto follow the same path. The main goal of the initiative is SN Power is an international hydropower company and“to increase access to clean energy at an affordable price commercial investor, developer and operator of hydropow-based on the long-term management of natural resources er projects in emerging markets. SN Power was establishedand efficient energy use. It is also intended to contrib- in 2002 as a Norwegian limited company owned by Stat-ute to sustainable economic and social development in kraft (50 percent) and Norfund (50 percent). Accordingselected partner countries and to international efforts to to an agreement concluded between the owners in 2008,reduce greenhouse gas emissions.”109 Statkraft increased its share to 60 percent while Norfund reduced its holding to 40 percent from January 2009.The initiative includes large-scale electricity generationprojects (hydropower, wind and solar farms) connected In January 2009, a subsidiary of SN Power was establishedto the grid, as well as projects with a clearer poverty focus, to intensify energy-related efforts in poor countries. SNsuch as rural electrification, more efficient wood-burning Power AfriCA will focus on energy investments in Africa andstoves and improved charcoal production. The initiative Central America. Efforts are being made to widen ownershipwill work to strengthen institutions, legal and institutional of this company beyond Norfund and Statkraft, and Norwe-frameworks and infrastructure that promote investments, gian energy companies such as BKK and Agder Energi haveproduction and trade. The initiative will also support invested in the company. To begin with, the company willregional energy activities. start projects in Nicaragua, Panama and Costa Rica.FIVAS and other organizations have long been critical of With Norfund as one of its investors, SN Power is requiredthe close linkages between powerful interests in the hydro- to follow the guidelines of the International Finance Cor-power sector in Norway and the promotion of hydropower poration of the World Bank (IFC). As we have seen, IFCin development aid to the energy sector. Although intend- have included in their performance standards the rights ofed to be “technology neutral”, the Clean Energy Initiative indigenous people to be consulted and included in deci-has already demonstrated a marked preference for large- sion-making processes, but does not include free, prior andscale hydropower projects. The “simple, decentralized solu- informed consent. Norfund insist that as long as they havetions” of the 2006 Environment in Development Action shares in SN Power and SN Power AfriCA, the companiesPlan remain an extremely modest part of the portfolio. will be required to follow IFC standards.109 Ministry of Foreign Affairs, Clean Energy for Development Policy Platform (approved April 2007)109 Framtiden i våre hender, Bistandssmuler til vind og sol, 04.01.1060
    • 4.4 Norway and Guatemala question can then be asked: what happens when Nor- wegian interests in the hydropower sector clash with theNorwegian actors have a long history in Guatemala, espe- protection of indigenous rights and the Norwegian policycially in supporting the peace process and human rights. to promote these?Norway is regarded by many as a positive contributor. Sev-eral Norwegian organizations have a long track record of As we have seen, the development of hydropower projectsaid and solidarity work in the country, including Norwe- is mostly taking place in districts where the majority ofgian People’s Aid, Norwegian Church Aid and the Norwe- communities are poor and indigenous. Norwegian aidgian Solidarity Committee for Latin America (LAG). As of policy underlines the importance of supporting the imple-2009, there were also 15 twinning arrangements between mentation of ILO Convention 169 concerning Indigenousmunicipalities in Norway and Guatemala. and Tribal Peoples, and the Norwegian Embassy in Guate- mala has made indigenous rights and securing indigenousTo date, there have been few commercial activities and communities’ participation in decision-making processes ainvestments undertaken by Norwegian companies in high priority. In 2008, the Norwegian embassy in Guate-Guatemala. Given Norway’s previous activities in Guate- mala decided to focus the majority of its aid program onmala, new Norwegian commercial activities can present a indigenous people’s rights – dubbed the Maya program112.series of dilemmas. A Norwegian company might get easieraccess to a particular sector, as Norway is perceived as a To date, only one attempt has been made to invest in thepositive contributor, while local organizations that have hydropower sector in Guatemala by a Norwegian company,been supported by Norway for years might be more reti- in 2008-2009. The Norwegian Agency for Developmentcent about criticizing Norwegian actors for fear of losing Cooperation (Norad) financed the pre-feasibility study.financial support. At the same time, bonds between Nor- The case is presented below as an illustration of the poten-wegian and Guatemalan organizations represent important tial pitfalls for companies and donors, as well as the impor-networks and possibilities for joint advocacy work. tance of understanding the local context and respecting the rights of indigenous communities.A recently published report “Norway’s strategic interestsin Central America” (2008) emphasizes the role Norwe- Renewable Energy Invest AS (REIAS)gian actors can play in the development of hydropowerand other renewable energy sources in Central America, The Norwegian-based private company, Renewable Energystating that “Norway has a strategic interest in further en- Invest AS (REIAS), was incorporated in January 2008. Thegagement in climate change mitigation and development company’s focus is to “invest in renewable energy in de-of alternative energy sources in Central America”111. The veloping markets113”. The company has three shareholders,111 Bull, B. et al (2008) Norway’s strategic interests in Central America. Norwegian Institute of International Affairs (NUPI) and Centre for Development and the Environment (SUM)112 Funding for the Maya program was set at 60 million Norwegian kroner over a four-year period. The agreement started in 2009 after a long planning process, and will last until 2012 . Norwegian bilateral aid was reduced considerably after 2007 with a reduction in staff at the embassy in 2007 and 2008. The embassy is responsible for El Salvador, Belize, Honduras and Guatemala.113 Renewable Energy Invest application for support from Norad, September 2008 61
    • Moloj is one of the Mayan women organizations supported by Norwegian cooperationeach with an equal share: Cfs Invest AS, Aurandt AS and world countries”, and that their knowledge about Guate-Hjelmstad Invest AS. mala is based on work “performed in-house” and from global seminars116. For this reason, they engaged consul-In September 2008, REIAS applied for support from Norad tants from the Norwegian consulting company Optimofor pre-feasibility studies in Guatemala. Norad supports Finance AS. Based on their advice and their own travel tobusiness initiatives in developing countries with subsidies the country, they identified Guatemala as the “best coun-for private companies, including support for pre-feasibility try for investment in renewable energy production”117.studies and project identification. REIAS was given a grant The idea was to start with the Tres Rios project, and thenof 362 000 NOK to undertake pre-feasibility studies for the establish an investment foundation in renewable energy inTres Rios project in the county of San Marcos, one of four Central America.projects under consideration114. The company wrote inits application that the project was chosen after thorough Optimo Finance AS (OF) is a Norwegian-based consultingconsideration and that the project “is not influencing nega- company, established in 1999. The company cooperatestively on the environment and has a good share of sustain- with companies and financial institutions worldwide, withable development for the area and its inhabitants”115. The the objective of “creating the best possible competitivecompany undertook pre-feasibility studies at the end of solution for financing of international projects.118” OF has2008, and sent in a new application for a due diligence been involved as financial advisor in infrastructure proj-project in April 2009. ects, in both private and public sectors, and works primari- ly in countries with limited access to competitive financing.The company states in their application that they have no The company evaluates companies and projects, assists in“documental experience from activities or business in third project and market evaluation, and arranges funding from114 Tres Rios, El Chocolate, St. Judas and La Perla115 Renewable Energy Invest application for support from Norad, September 2008116 Ibid117 Ibid118 http://www.optimofinance.no/index_files/about_us.htm62
    • commercial banks and other financial institutions, devel- potential investors have included the Meany family, Miguelopment agencies and multilateral banks. OF has also been Fernanced Bianchi120 and Maegli, a well-known figure inengaged as facilitator for the implementation of projects Guatemalan business. The company Cementos Progresogiving reduced greenhouse gas emissions. has also expressed interest in the project121.The Tres Rios project in San Marcos Arguments used by Hidroeléctrica Tres Rios in favour of the project include an unsatisfied demand for electric-The planned Tres Rios project is a dam cascade project ity, high prices and a lack of provision in the area122. Theon the Cabuz river, utilising the flow of the Cutzulchimá, objective of the project is presented as follows: “GenerationCanujá, Negro and Chapá rivers, within the municipalities of energy from renewable resources that feed the nationalof San Pablo and Tajumulco in the county of San Mar- network of electrification, contributing to satisfying the lo-cos. The project has a generation capacity of 50 MW and cal demand for electrical energy of the population”123. But,requires an investment of 60 million dollars. The projects as we have seen, the existence of a hydropower project in aconsists of three sub-projects, with their respective dams, municipality does not necessarily mean that the surround-reservoirs, tunnels, powerhouses and sub-stations for con- ing communities and the municipality get better access tonection to the national grid. electricity, nor better prices. The company acknowledges in a presentation that they are not allowed to distributeREIAS intended to develop the Tres Rios project in Gua- electricity directly to the communities124.temala in partnership with the project’s initial developer,Hydroeléctrica Tres Rios AS, in collaboration with the The company also argues that there is a lack of a cultureGuatemalan company HIDROC SA. Financing for the for sustainable use and conservation of natural resources.project was to include owner’s equity (25-30 %) and loans Many would disagree with this, and there are no guaran-from commercial banks like Central American Bank for tees that companies would represent good environmentalEconomic Integration (CABEI). The company Empresa management and conservation, due to the lack of controlElectrica Matamoros, S.A. (Costa Rica) was also involved, and follow-up of environmental consequences of projects,as was Diaz Duran & Asociados Central Law which pro- including weak environmental impact assessments.vided legal advice to REIAS119. A presentation, made by the company to organizations,The company Inter-Credit Latin America is also believed local communities and other interested actors, includes anto have been involved in the Tres Rios project. Other illustration of the river and the project, and indicates that119 The company Hidroeléctrica Tres Ríos, S.A. is part of the conglomeration Hidrosacpur, S.A. that is constructing the hydropower La Perla in San Miguel Tucurú, Alta Verapaz, on the river Sacpur, from the river Polochic. The project is owned by Agrícola Vinaros, S.A., and is also financed by BCIE. The project La Esmeralda is placed in the same municipality, where Hidrosacpur, S.A. is also participating, also financed by BCIE120 Involved in the maquila industry, with ties to the former Oscar Berger government121 Unconfirmed information from an informed source122 Powerpoint presentation by the company Tres Rios, obtained from local representatives in the area123 Ibid124 Ibid 63
    • From a presentation by the the company hidroelectrrica Tres Rios.1) the hydropower project will clean the water it uses; 2) construction license and taxes to the municipality; publicthe ecological flow will not be affected; 3) the community lighting; a social fund for local projects; and generation ofwill receive electricity; 4) there will be reforestation close to 49 MW of clean electricity at a lower price.the project; and 5) people will earn money in the commu-nity. In sum, the drawing is misleading as none of these are The argument that the project will serve the interests ofautomatic consequences of a hydropower project. local communities by providing access to electricity and cheaper electricity is used by REIAS in its application toBenefits for local communities are further presented as in- Norad. This states that: “the project will bring necessaryfrastructure improvements; construction and maintenance energy supply to the area as well as creating job oppor-of roads; social responsibility; care and protection of the tunities during construction”. What is not mentioned isenvironment; and legal and administrative management. that the energy produced by Tres Rios is just as likely toSocial responsibility is presented in the form of security, be exported to El Salvador or, with the construction oftechnical assistance and capacity-building, as well as edu- the interconnection line of SIEPAC, to the rest of Centralcation, communication about the project and a social fund America, or, given its close proximity to the border withwhere the community can apply for support for education Mexico, even beyond.and health. The environmental part is described as “appli-cation of the environmental management plan” and “man- By the end of April 2009, REIAS had agreed to take overagement of natural resources” such as forests and water. the project and start due diligence of the project. In its sec-More specific benefits for the communities are presented ond application to Norad for the due diligence project125,as the creation of 250 jobs; 30 kilometers of road; reactiva- REIAS states that ”it is further intended to elaborate a plantion of the economy; conservation of forests; paying the for sustainable future development by aiding the com-125 dated 30.04.0964
    • munity to initial basic development and business (schools, need for more information to predict possible damage tohealth care, shops and small business etc)”. The applica- the ecosystem, especially water resources. The representa-tion includes a request for 50 000 USD for local projects tives at the meeting decided that the EIA should be madethat can be initiated before construction starts, saying that known in the communities. In July 2008 a consultationthese funds will be used for “urgent and needed efforts”. processes was undertaken in Tajamulco, where the major-As already discussed, FIVAS is sceptical to the initiation of ity of the inhabitants voted no to hydropower and miningsocial projects before construction, with the apparent aim projects in the municipality.of buying local residents’ consent. The residents of Tajamulco said no to the project for sev-Early reactions eral reasons. One reason was the process of land purchases. Many of the residents felt pressured to sell their land andAn initial environmental impacts assessment (EIA) was were not informed about the future use of the land; somecarried out for the project in 2004, and approved by the were misinformed. When they were later informed aboutMinistry of Environment and Natural Resources (MARN), the use of the land, they regretted selling and wanted theirwithout informing or consulting the affected communities. land back. Secondly, the residents state that they have beenBetween 2004 and 2006, the company Hidroelectrica Tres poorly informed about the project for many years, and thatRios started buying up land and properties needed for the they have requested information from the company andproject. In 2006, two local women that felt pressured to the state, without getting a response. They have also invitedsell their land contacted the human rights program of the the company to meetings where the company has notbishop of San Marcos. The company had told them that shown up. The residents also rejected hydropower in thethey wanted to buy the land to turn it into a conservation area because of the possible impacts it can have on waterarea, reforest it and protect the river basin of Canuja, ac- sources, and the poor environmental studies that havecording to a document from the human rights program. been undertaken. Finally, they rejected the project because there had not been any form of consultation with the com-Two community acts from 2007 show the reactions of munities concerning hydropower development in the area.the local communities. In 2007, the mayor of Tajamulcoinformed the community that the company had paid him The Tajamulco encountera visit. The community made it clear that they did not wishto have the project and decided to undertake a consulta- It is in this context that the encounter between two Norwe-tion process about mining and hydropower in the area. gian consultants and the local communities in TajamulcoCommunity members expressed their concerns about the in May 2009 must be seen. A meeting was organized by thetunnel that was going to be built as part of the project and Norwegian Embassy before the encounter, with local lead-how the construction might affect the many water sources ers, the company, the embassy and Norwegian and Guate-in the area. An engineer from the company assured them, malan organizations present. The Guatemalan organiza-at one of the meetings, that geological studies had been tions assert that the Norwegians were informed about theundertaken and that water sources would not be damaged. local context and the opposition to the project, and wereAnother engineer informed them of the EIA, but stated given a clear signal not to travel to the area without con-that conclusions were very general, and that there was a sulting and notifying the communities. Nonetheless, the 65
    • Tajamulco, San Marcos. Local residents are opposing the hydropower project Tres Rios.two Norwegian consultants went to the area to carry out amount of the request from 2.3 to 0.7 million NOK.studies, and were detained by the community. The Norwe- They wrote in their application that there had been greatgians were taken to a local meeting-place and interrogated enthusiasm for the project in the two lower sections ofin front of 1 500 people from surrounding communities the project, but that local resistance was strong in theabout what they were doing in the area. The Norwegians upper section. Therefore they would not continue thesigned a document saying that they would withdraw from project. They also wrote that the experience and infor-the project. mation gathered would be used in the appraisal of other projects in the area, and that they would return with aIn July 2009, the company sent a revised application new application later.to Norad for the due diligence project, reducing the66
    • FIVAS spoke with the communities in Tajamulco to get project without any success. REIAS writes, in its applica-their side of the story. The principal demands of the com- tion to Norad, that the local company had tried to informmunities in relation to projects affecting their territories the communities about the project for the past two years,are as follows: when the EIA is from 2004. This means that the informa- tion campaign started long after both the EIA and land• The communities oppose the construction of hydro- purchases had been conducted. power projects involving the diversion of rivers through tunnels to generate electricity. The communities are It is also a matter of concern that REIAS requested funding concerned about their access to water, and water needed from Norad for local social projects prior to construction for the ecological system and that these types of project (50 000 USD). A consultation and information process do not correspond with their vision of development and should not involve donating projects to local communities, their culture. thereby confusing the situation and making it impossible• The communities wish to protect their territorial rights to consider the larger project on an objective base. From and prevent loss of land or fragmentation of their land. our point of view, this represents an abuse of people with The selling of land without community consultation di- low education living in poverty. rectly impacts territorial integrity and generates divisions in the community. They demand that the lands pur- Indigenous rights are not addressed as an element in the chased by the company be returned to the communities. pre-feasibility study. REIAS and the consulting company• The communities demand that they be consulted OF appear to have had limited knowledge about the rights pursuant to rights afforded them in ILO Convention 169 of indigenous peoples. The local context must be taken and the Municipal Code of Guatemala. They demand into account from the very beginning. In the communica- that local consultation processes be respected. tion between Norad and REIAS, the donor requests that• The communities are interested in development of indigenous rights be addressed in the study report, based their areas, but this should be in accordance with their on concerns raised by the Norwegian embassy in Guate- own priorities and should benefit them directly. They mala. As far as we can see, this has not been done. seek support for the development of communal projects, managed and owned by the community. There is no mention of indigenous groups in the study report, although they represent the majority of the popula- tion in the area. A lack of knowledge and understanding of indigenous peoples and their rights is also apparent in the4.5 Lessons learnt application for due diligence in April 2009, in which the area is described as being primarily inhabited by “IndiansThe EIA had already been prepared several years before and the very poor”. In the preliminary study, REIAS refersthe Norwegian company got involved, and was weak and to the local communities as residents, and confirms thatoutdated. The plan for due diligence included a review of marginal groups and women have not yet been considered.the existing EIA. In this case, the EIA had been prepared “Evaluation of the local population and consideration forwithout consulting the communities, and the communities them” is included in future plans. This should be the veryhad on several occasions tried to get information about the first point to evaluate. 67
    • 5 Conclusions and recommendationsConclusions cess. Adequate consultation requires the involvement of the authorities, with independent observers. The state1 The strategic plan for hydropower development in has been absent in these processes. Guatemala was prepared without consulting civil society and indigenous peoples. The affected commu- 6 The high degree of legal uncertainty regarding land and nities have very limited possibilities of influencing the properties, as well as the lack of titling of land, further decision-making and development processes. deepens the current conflicts.2 The privatization and liberalization of the energy sector 7 Disagreements and conflict in the communities destroy in Guatemala has produced a legal framework that pri- social networks and peace in the community. oritizes the interests of private actors and has eroded the role of the state as a guarantor of citizens’ rights in Gua- 8 There is discrimination in different groups’ access to temala. The state has begun to function as an intermedi- justice. ary for private business interests and, in many cases, has acted to defend private economic interests at the expense 9 Electricity is rarely spoken of as a basic service, but as a of the local population and the environment. business matter.3 The current legal and institutional framework for the 10 Development of projects without consultation and the energy sector in Guatemala leaves local communities consent of the communities generates conflict, with and nature vulnerable, with limited protection. negative implications for the well-being of communi- ties and the implementation of projects.4 The lack of implementation of ILO convention 169 leaves indigenous peoples deprived of their rights, such 11 Many environmental studies are weak and inadequate, as real participation in decision-making; adequate con- and do not give enough importance to the rich bio- sultation processes; mechanism for mitigation; respect diversity and valuable ecosystems in Guatemala. The for their territory, culture and organizations; and real high vulnerability to climate change and natural catas- benefit-sharing. The lack of an adequate legal frame- trophes is not taken into account in the assessments. work is not an excuse for the state not to comply with international agreements. 12 There are few incentives to promote municipal and community energy production and distribution, and5 Direct negotiations between the communities and the municipalities and communities have little access to companies are characterised by an imbalance and resources. asymmetry of power. This represents a model that contradicts the positive evolution of indigenous rights, 13 There is an acute lack of space within Guatemalan in which responsibility for entering into dialogue, politics for the creation of public forums that can serve as consulting, negotiating and making agreements with arenas for dialogue and negotiation for affected local com- indigenous communities lies with the state. Consulta- munities. There are no common arenas where communi- tion is not just about providing information, holding a ties, municipalities, companies and the state can all par- meeting or signing a document, but is also about pro- ticipate and take into account those affected by projects.68
    • 14 There is limited distribution of information about tion on the Rights of Indigenous Peoples, approved by projects and there are no mechanisms for distributing Guatemala in 2009; as well as other documents, such information among affected communities, municipali- as the International Convention on the Elimination of ties, state institutions, Councils of Development, etc. All Forms of Racial Discrimination (ICERD), human The multilingual context of Guatemala and the level of rights covenants and the American Convention on Hu- illiteracy, especially among indigenous people, is not man Rights. taken into account. Studies are not translated into local languages. 4 Proceed with the proposals and acknowledge the efforts to elaborate a law of consultation with indigenous15 The information process that does exist is one-way peoples and other laws on indigenous rights that have communication, where the communities’ knowledge, been put forward. inputs and experiences are unimportant and there is little understanding of the situation of local communi- 5 Declare a moratorium on new licences and authoriza- ties among companies and state institutions alike. tions on the use of rivers until a law of consultation is in place and adequate information is provided.16 The criminalization of social protest is a primary concern, as well as the persecution, discrimination and 6 Create open and participatory spaces for dialogue with intimidation of local leaders and activists. Expressing indigenous peoples and local communities to receive one’s opinion is a democratic right. complete and objective information, resolve any doubts and concerns, and listen to inputs and local experiences.Recommendations 7 Acknowledge, respect and strengthen the local consul-To the Guatemalan state, the judiciary and developers: tation processes that are taking place.1 Modify the legal and institutional framework for the 8 Ensure that high-quality environmental impacts assess- energy sector so that it protects the rights of citizens, and ments (EIAs) are prepared by qualified consultants, especially the rights of indigenous peoples and their ter- with clear criteria and open participative processes. ritories. Modify the General Law of Electricity to incorpo- Elaborate a plan to improve EIAs in line with land use rate the duties of the state in relation to the protection of planning and integrated water resource management, the rights of indigenous peoples and local communities. in collaboration with local communities, and improve the terms of reference for preparing assessments.2 Put in place a legal framework that prioritizes access to Robust and enforceable guidelines for relocation and electricity for the country’s inhabitants and assures compensation according to the unique community benefits for the municipalities, communities and the context must be included in any proposed project. people of Guatemala. 9 Draw up a water law that incorporates the rights of3 Realize the implementation of ILO convention 169, . communities, the human right to water and indigenous The obligation to consult is recognized in ILO conven- peoples’ rights. tion 169, ratified by Guatemala in 1996; in the Declara- 69
    • 10 View local communities as a potential partner in 4 Local communities should be viewed as possible projects. Instead of buying their lands, the land should partners in projects. Instead of buying their lands, the be rented (usufructo), giving the communities a share land should be rented, giving the communities a share in the benefits and income from the projects. in the benefits and income from the project.11 Ensure open processes, access to and distribution of 5 An evaluation of how indigenous rights are to be information to all the affected and involved actors. The respected and protected in projects should be included 20-day limit to provide comments on EIAs must be in preliminary studies financed by Norad and other extended. Information should be actively distributed, at international development institutions. no cost, to all affected parties. 6 Companies requesting support to work in areas with12 Follow the recommendations of the World indigenous groups should be required to prove their Commission on Dams. competence in the area or present a plan for how they are going to handle this issue, with independent moni-To Norwegian and other foreign/international actors: toring of the process.1 Norwegian aid policy should take as its starting-point 7 Investigations related to the criminalization and perse- the energy needs of the poor and their use of and access cution of human rights defenders should be promoted to natural resources, rather than adopting an approach and supported. There is also a need to strengthen the that simply embraces “what we’re good at”. Norway monitoring of the situation of human rights defend- should support comprehensive needs and options as- ers, especially those defending economic, social and sessments – not just in the case of hydropower – that cultural rights. take into account environmental and social dimensions as much as financial and technical aspects. Furthermore, 8 The government of the country of origin of internation- Norway should endorse the principle of free, prior and al companies should assure that the companies promote informed consent in hydropower development projects. and respect human rights beyond their national borders.2 Norwegian and other foreign actors should be more 9 International pressure should be applied to ensure that critical of their partnerships with local companies. the agreed Plan of Reparation in the case of the Chixoy They should ensure that the government has consulted dam is signed and implemented by the national gov- with the communities in question, and that companies ernment. have done their part to make available all information 10 All investments made by Norwegian actors in indige- needed, and that the communities have been heard, and nous territories should be thoroughly reviewed to es- their needs and inputs have been taken into account. tablish clearly the impacts and potential benefits these3 Norwegian and other foreign actors should be particu- investments might have on the legal, social, political, larly careful on the question of how the local company economic, and cultural situation of indigenous peoples. has acquired land, and make use of different sources, not just the company, to determine how land and prop- 11 All hydropower projects should be in line with the erty have been obtained. There should be higher stan- recommendations of the World Commission on Dams. dards in terms of required local knowledge, to avoid a repetition of unfortunate incidents in the future.70
    • List of Acronyms and AbbreviationsADIVIMA Association for the Integral Development of the Victims of Violence in the Verapaces, Maya Achi – Asociación para el Desarrollo Integral de las Víctimas de la Violencia en las Verapaces, Maya AchíAGAII Guatemalan Association of Indigenous Mayors and Authorities – Asociación Guatemalteca de Alcaldes y Autoridades IndígenasAGER Association of Renewable Energy Generators – La Asociación de Generadores con Energia RenovableAIN Norwegian Church Aid, Ayuda de la Iglesia de NoruegaAIRIP Agreement on Identity and Rights of Indigenous Peoples – Acuerdo sobre Identitdad y Derecho de los Pueblos IndigenasAMM The Wholesale Market Administrator – Administrador del Mercado MayoristaANAM The National Association for Municipalities – la Asociación Nacional de Municipalidades de la República de GuatemalaANG National Associations of Generators – Asociación Nacional de GeneradoresAPN Norwegian Peoples Aid – Ayuda Popular de NoruegaBKK Bergenhalvøens kommunale kraftselskapCABEI Central American Bank for Economic IntegrationCACIF Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations – Comité Coordinador de Asociaciones Agrícolas, Comerciales, Industriales y FinancierasCALAS Centre for Legal, Environmental and Social action – El Centro de Acción Legal-Ambiental y SocialCCAD Central American Commission on Environment and Development – Comisión Centroamericana de Ambiente y DessarrolloCDM Clean Development MechanismCNEE National Commission for Electrical Energy – Comisión National de Energía ElectricaCOCAHICH Coordinating Committee of Communities Affected by the Chixoy Dam – Coordinadora de comunidades afectadas por la hidroeléctrica ChixoyCONAP National Council of Protected Areas – Consejo Nacional de Areas ProtegidasCONAVIGUA Coordination of Guatemalan Widows – Coordinadora Nacional de Viudas de GuatemalaCOPAE Comisión Pastoral Paz y EcologíaCUC Central Unitario CampesinoCSR Corporate Social ResponsibilityDEOCSA Distribuidora de Electricidad de Occidente, Sociedad AnónimaDEORSA Distribuidora de Electricidad de Oriente, Sociedad AnónimaEBRD European Bank for Reconstruction and DevelopmentEDEE la Empresa de Distribución de Energia ElectricaEEGSA Empresa Electrica de GuatemalaEGEE Empresa de Generación de EnergíaEIA Environmental Impact StudiesEIB European Investment BankETCEE la Empresa de Transporte y Control de EnergíaETS European Emissions Trading SystemFIVAS The Association for International Water Studies – Asociación de Estudios Internacionales de AguaFLACSO The Latin American Faculty of Social Sciences – Facultad Latinoamericana de Ciencias SocialesFPIC Free, prior and informed consentHSBC The Hong Kong and Shanghai Banking Corporation LimitedIADB/BID Inter-American Development Bank – Banco Interamericano de Dessarrollo 71
    • ICERD The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) IFC International Finance Corporation IHA International Hydropower Association IMF International Monetary Fund INAB National Forest Institute – Insituto Nacional de Bosques INDE National Institute of Electrification – Instituto Nacional de Electrificacción INE Instituto Nacional de Estadística IUCN International Union for the Conservation of Nature LAG The Norwegian Solidarity Committee for Latin America – El Comité Noruego de Solidaridad con América Latina MAGA Ministry of Agriculture, Cattle and Food – Ministerio de Agricultura, Ganaderia y Alimentación MARN Ministry of Energy and Natural Resources – Ministerio del Medioambiente y Recursos Naturales MEM Ministry of Energy and Mining – Ministerio de Energía y Minas MIGA Multilateral Investment Guarantee Agency MINUGUA United Nations Verification Mission in Guatemala Norad Norwegian Agency for Development Cooperation Norfund Norwegian Investment Fund for Developing Countries GIEK Norwegian Guarantee Institute for Export Credits NUPI Norwegian Institute of International Affairs OAS Organization of American States OP Optimo Finance AS PER Rural electrification Plan – Plan de Electrificacción Rural REIAS Renewable Energy Invest AS SAVIA School of Ecological Thought – Escuela de Pensamiento Ecologista SIEPAC Central American power interconnection system – Sistema de Interconexión Eléctrica para América Central SIN Sistema Nacional Interconectado SN Power Statkraft Norfund Power SUM Centre for Development and the Environment UMB University of Life Sciences UNAGRO Agrarian Owners Group – Unión Nacional Agropecuaria UNDRIP United Nations Declaration on the Rights of Indigenous Peoples UNE Unidad Nacional de Esperanza UNHCR United Nations Refugee Council Union Fenosa Unión Eléctrica Fenosa Sociedad Anónima WCD The World Commission on Dams WRI World Resources Institute72
    • Meetings with organizations: Meetings with government:• CALAS – Centre for Legal, Environmental and Social • AGAII – Guatemalan Association of Indigenous Mayors Action – El Centro de Acción Legal-Ambiental y Social and Authorities (CALAS) • AMM – Wholesale Market Administrator – Administra-• Ceiba – Friends of the Earth – Amigos de la Tierra dor del Mercado Mayorista• COCAHICH – Coordinating Committee of Communi- • ANAM – National Association for Municipalities – la ties Affected by the Chixoy Dam – Coordinadora de co- Asociación Nacional de Municipalidades de la República munidades afectadas por la hidroeléctrica Chixoy de Guatemala• CONAVIGUA – Coordination of Guatemalan Widows – • CONAP – National Council of Protected Areas – Coordinadora Nacional de Viudas de Guatemala Consejo Nacional de Areas Protegidas• CONIC – National Coordination of Indigenous Peoples • INDE – National Institute of Electrification – Instituto and Campesinos – Coordinadora nacional Indigena y Nacional de Electrificacción Campesina • MARN – Ministry of Energy and Natural Resources –• Consejo de los Pueblos del Occidente Ministerio del Medioambiente y Recursos Naturales• COPAE – Comisión Pastoral Paz y Ecología • MEM – Ministry of Energy and Mining – Ministerio de• Copae – Comisión Pastoral Paz y Ecología Energía y Minas• CUC – Central Unitario Campesino• Defensoria Maya Congress:• Fundación Solar • Energy and Mining Commission – Comisión de Energiay• Madre Selva Minas• Moloj – Asocación Politica de Mujeres Mayas • Environment and Natural Resources Commission –• New Day’ Chortí Campesino Central Coordinator, part Comisión de Medioambiente y Recursos Naturales of the Agrarian Platform – Nuevo Dia Meetings/interviews with private sector• SAVIA – School of Ecological Thought – Escuela de and companies Pensamiento Ecologista • AGER – Association of Renewable Energy Generators –• Uk’ux B’e La Asociación de Generadores con Energia Renovable • ANG – National Associations of Generators – AsociaciónOthers: Nacional de Generadores• Avancso – the Guatemalan Association for the Advance- • Rio Hondo ment of the Social Sciences • Hidroelectrica Pasabien• CEDER – Centre for Rural Development in Guatemala • ENEL representative• El Observador • Generación Limpia Guatemala• FLACSO – The Latin American Faculty of Social Sciences – Facultad Latinoamericana de Ciencias Norwegian actors:• Inforpress • SN Power• OAS – Organization of American States • AIN – Norwegian Church Aid, Ayuda de la Iglesia de• Propaz Noruega• Universidad Rafael Landivar • APN – Norwegian Peoples Aid – Ayuda Popular de NoruegaMeetings and observations in communities: • Norad – Norwegian Agency for Development Coopera-• Communities in Zona Reina (Quiche) tion• Communities in Zona Ichil (Quiche) • Norfund – Norwegian Investment Fund for Developing• La Libertad (Tajamulco, San Marcos) Countries• Playitas Copon (Uspantan, Quiche) • Norwegian Embassy in Guatemala• Camotan, Jocotan (Chiquimula) • Guatemalan Embassy in Norway• Chel (Chajul, Quiche)• Altaverapaz 73
    • The community Playita Copon reject hydropower on the river Copón and Xalalá, no more violence, yes to peace. We respect the ILO convention 169 and articles 12-13-14-15-16-67 and 68 of the constitution.74
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    • www.fivas.org76