Posted on February 28, 2015 by ACOGUATE

Translation by NISGUA

On November 7, 2013, the National Electrification Institute (Instituto Nacional de Electrificación, INDE) signed an Emergency Purchase contract with the Brazilian company Intertechne Consultores, S.A. to conduct the geotechnical, seismic, geological and geophysical feasibility studies for the Xalalá dam, without informing and consulting the affected communities. More than a year later, affected communities organized through the Association of Communities for Development, Defense of Territory and Natural Resources (ACODET) are still waiting for the decision of the Constitutional Court on the irregularities of the contract and the lack of consent.

Photo credit: ACOGUATE archive

Even though the company was unable to begin their groundwork during 2014, tension in the region has increased. On December 12, the Ministry of Energy and Mines declared it would no longer be actively pushing the Xalalá project forward during the current administration, however communities remain concerned about its continued development. ACOGUATE has accompanied ACODET since 2007 and accompanied consultations in the Ixcán and Uspantán in 2007 and 2010.

Legal action against irregularities within the contract and the right to be consulted
The Xalalá dam is currently the largest planned hydroelectric project in Guatemala. With a generating capacity of 181 megawatts, if built, the dam would be the second most powerful in the country after the Chixoy dam. It is estimated to directly affect 58 communities in the region.  The contract signed between INDE and Intertechne Consultores, S.A. on November 7, 2013 is for a period of 12 months,  and is now being questioned due to irregularities in the contract.

On April 10, 2014, the office of the General Comptroller (Contraloría General de Cuentas, CGC) filed a legal complaint against 12 members of the INDE board of directors, noting irregularities in contracting the Brazilian company to conduct the feasibility studies of the Xalalá dam – a contract valued at Q40.8 million.  According to the General Comptroller, Nora Segura: “It is clear that the adjudication process of the feasibility study was not transparent. There are many irregularities and neither the law nor the internal process of INDE were respected, much less the government procurement law, which is why a criminal complaint was filed.”  In particular, the CGC called attention to three irregularities, stating that they infringed upon government procurement law:

  • INDE hired Intertechne directly without going through the public bidding process of GUATECOMPRAS, claiming a national emergency,
  • INDE paid an advance that was 20% higher than the maximum allowed for the contract, and
  • At the time of signing the contract, the Brazilian company did not have headquarters in Guatemala but instead, established a subsidiary company 60 days later.

A month later, Amilcar Pop, the President of the Congressional Committee on Integrity (CGC), filed a complaint against members of the INDE board of directors – including Minister of Energy and Mines Erick Archila, former INDE Manager Marinus Boer, and INDE Project Manager Widthmark Estrada – for fraud, abuse of authority, embezzlement and failure to report to the Office of Administrative Offences of the Public Prosecutor’s Office.  Amilcar Pop found that the contracting process was set out to directly benefit Intertechne. Alongside the CGC, Amilcar Pop found that the lack of offers from interested companies to conduct the feasibility study – leading to the eventual abandoning of the study in March 2013 – was likely due to INDE’s requirement that each company pay $10,000 US just for the right to participate in the bidding process. According to Amilcar Pop: “While complying with legal requirements, that condition was put in place to guarantee that no one would participate and therefore, demonstrate the need to award the contract without any competition.”

Even President Otto Peréz Molina gave contradictory answers regarding the irregularities. He called for the resignation of INDE’s manager, Marius Boer, who retired a week before being called to present before Congress.  On April 10, Otto Peréz Molina publicly stated that he was in agreement with the cancellation of the contract. He changed his discourse three days later, however, when he said that the feasibility study for the Xalalá hydroelectric dam was of national priority,  and therefore, INDE was exempt from following the Law of Contracts and Purchasing and instead, needed only to follow its own internal decision-making procedures.  Since the start of the project, the government has stated on several occasions that Xalalá is a priority and that feasibility studies would be carried out during Molina’s administration. It was not until December 12, 2014 that the Minister of Energy and Mines stated the administration would not actively push the Xalalá project forward, feasibility studies would continue despite ongoing opposition and it would be the next administration which would make a decision.

Photo credit: ACOGUATE archive

The Supreme Court denied the preliminary hearings requested to contract Intertechne. The Attorney General’s Office declared itself unfit to rule on the impacts of the contract, arguing that the Office could not intervene in the activities of an autonomous institution like INDE.  On June 12, 2014, affected communities represented by ancestral authorities of the Xalalá and Las Margaritas Copón communities filed an injunction against the irregularities of the INDE contract and Intertechne. On July 22, ancestral authorities went before the Procedural Complaints Court and with legal support from Maya Lawyers and third-party support from Congressman Amílcar Pop, argued the illegality of Intertechne’s contracting process. They also presented arguments around the lack of consultation with the communities before the contract was signed, effectively ignoring the results of the community consultations in the municipalities of Ixcán in 2007 and Uspantán in 2010.  INDE failed to appear at the public hearing.

In its decision, the Court declared the injunction to be of partial merit and recognized the lack of prior and informed consultation with the communities by INDE. However, the Court did not annul the contract, stating that it would be the responsibility of the Public Prosecutor’s Office, who defended the contract at the public hearing. In addition, the Court’s ruling requested that impacted communities participate in the study, which was subsequently appealed by ancestral authorities, the Congressional Committee on Integrity, and INDE.

In its second public hearing on October 8, 2014 in the Constitutional Court, INDE argued that they did in fact consult communities, presenting the “right to passage” signed by various Community Development Councils (COCODEs) in the region as evidence. However, the ancestral authorities insisted that no consultation process took place and that INDE only came to communities to offer development projects, which cannot replace consultation in accordance with national and international law. Likewise, the chairman of the Congressional Committee on Integrity argued that, “These rights were not respected in the least, and [the contract] threatens the constitutional right of the Guatemalan people, as outlined in Articles 58, 66 and 67 of the Constitution, where the rights of indigenous peoples are recognized.”  He also noted there were already two feasibility studies made in the 1970s, which showed the soil in the region where the dam would be built is too sandy, making it unfit to withstand the planned Xalalá construction. In addition, this puts into question the justification of a new feasibility study, with a demonstrated lack of transparency on part of INDE in relation to the project. A decision on the injunction is still pending from the Constitutional Court.

Strong Impact on Affected Communities

During 2014, tension in communities affected by the Xalalá project increased, leading to divisions within and among communities that have differing opinions on the dam’s construction. Although Intertechne has not appeared in the area, affected communities have claimed that INDE and the Ministry of Planning and Programming (SEGEPLAN) have tried to convince people by coopting leaders and COCODEs, conditioning rural electrification on the acceptance of the dam, as well as offering development projects outlined in the “Immediate Action Plan 2013-2014 Xalalá – Investment for Development.” Affected communities organized within ACODET have also suffered heavy pressure, militarization and defamation. Community leaders feel greater concern since the signing of the contract in November 2013. As one community member states: “How can one live when under constant threat?”

According to Amnesty International, there has been an increase in military presence in various locations in Guatemala under the current government, especially in regions with a high percentage of indigenous peoples and strong opposition to megaprojects. This militarization is justified through defamation and criminalization, where leaders are accused of being terrorists or drug traffickers.  The army arrived twice in the region in 2014. On February 25, a military and police convoy arrived at the entrance of the Q’eqch’i communities of Las Margaritas Copón and Xalalá, allegedly due to a complaint about the suspected presence of drug traffickers in the Xalalá community.  Yet no one from the community of Xalalá had registered the complaint.  Nevertheless, several news outlets had already circulated the announcement made by the Minister of the Interior about the presence of drug traffickers in Xalalá, linking communities directly with drug trafficking; Prensa Libre tweeted: “An armed command pressures the population of Xalalá, Ixcán, Quiché to get involved in drug trafficking.”

Photo credit: ACOGUATE archive

Given these circumstances, ACODET believes this to be the continuation of a governmental strategy to impose the construction of the Xalalá project: “Under these circumstances, we understand that the government is trying to terrorize our communities, discredit our struggle against the imposition of the Xalalá dam and justify the presence of military troops in our territory.”  Two months later on May 5, military and police convoys returned to the neighboring community, Copalá la Esperanza, in the municipality of Cobán, Alta Verapaz. They arrived in the community in the morning, without warning and armed with machine guns,  explaining that the purpose of their presence was to patrol the area and to cross the river. Since Copalá is a community of returned refugees who fled during the internal armed conflict, the unexpected arrival of the army caused much concern and fear among the community. Community members stated:

“The presence of the military in our community without our consent causes us great concern, as they came heavily armed as if they were coming to wage war against us while we are in times of peace. Their presence causes fear, despair, and reminds us of the traumas inflicted during the internal armed conflict. They turned us into victims of war and we continue to be victimized by the threats their presence brings to our territory; just seeing them causes panic…“

Concern for the Violation of Fundamental Rights

Reacting to the two military incursions, communities of ACODET cite Article 30 of the Declaration of the United Nations on the Rights of Indigenous Peoples: “No military activities will take place in the lands or territories of indigenous peoples…”  They affirm that entering without consent into their communities violates their right to self-determination, their territory and their ancestral authorities –rights guaranteed by various international treaties. They demand that this type of activity not be repeated.  “There is concern among communities that INDE could enter by force to conduct the studies. Communities live under constant tension, wondering how and when they might enter. Given the violent evictions by the police in 2014 in other parts of the country such as in La Puya and Monte Olivo, the community leaders of ACODET are worried they could face a similar situation.
The Office of the Human Rights Ombudsman (PDH) also expressed its concern about the situation in May 2014: “With the [construction of] the Xalalá dam, three fundamental rights are being violated: the right to life, to live in a healthy environment and the right to health.”  On several occasions, leaders and social organizations in the region who oppose the dam have been slandered by local and national actors.

Communities threatened by the construction of the dam have filed complaints with human rights organizations about the use of the Rural Electrification Project Las Copones (Proyecto de Electrificación Rural Los Copones) to carry out the Xalalá project. It has also been reported that INDE geologists have enterred communities by using the legitimate request for bringing electricity to the communities as a substitute for free, prior and informed consent. This action has caused division and confrontations within communities.  At a meeting held in Ascension Copón, Uspantán in December 2013, shortly after signing the contract with Intertechne, senior staff of INDE (Manager Marinus Boer and Project Development Manager Widthmark Estrada) agreed to begin the feasibility studies for the electrification of nine communities.  However, there has still been no progress made in electrification.

In the same manner, humanitarian aid has been conditioned. In March 2014, Uspantán Mayor Victor Hugo Figueroa conditioned material support and equipment to open up roads after heavy landslides in the Zona Reina, Uspantán, in exchange for the acceptance of the presence of INDE engineers who were to perform the technical studies needed to advance rural electrification.  [In the landslides], 27 families of the community of Playitas Copón lost their homes, their livestock and crops and had to take refuge in neighboring communities, where they lived under plastic tents without access to potable water or plumbing.  Since the communities did not accept these conditions, the mayor delayed the road repairs and waited until seven months later – in October – to deliver rooftops and food.

Due to the lack of official information since 2007 on the possible impact of the dam construction, ACODET has requested meetings with relevant state authorities.  In January 2014, the project development manager of INDE began to talk about a design change for the dam, stating that instead of a large hydroelectric dam, there could be several medium-sized ones on both tributaries (Chixoy and Copón. He subsequently argued that the concerns of affected communities are disproportionate to possible damages.

It is important to note that a meeting was held on November 13, 2013, in San Juan Chactelá, Ixcán, between representatives of INDE and communities from Ixcán, Uspantán and Coban who will be directly or indirectly affected by the construction of the dam. At the meeting, INDE failed to mention that the contract with Intertechne had already been signed six days prior.  The International Mission of FIAN, CIFCA, CIDSE and APRODEV that visited two communities of the region in November 2014 found that, “communities do not have adequate information and have not been adequately consulted,” and reminded “the state of its responsibility to provide accurate, complete and objective information on topics of interest to the community.”  According to Article 169 of the International Labor Organization (ILO), ratified by Guatemala in 1996, the state has an obligation to “consult the affected people using appropriate procedures, particularly through their representative institutions, whenever carrying out legislative or administrative activities that may directly affect them.”

For a complete list of sources, please see the original article on the ACOGUATE blog.