Implementation of the CFS Tenure Guidelines at the local level in Guatemala Paper prepared for presentation at the “2016 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 14-18, 2016 Geiselle Sánchez y Laura Hurtado

Context -Palm oil in 6 departments: Escuintla, Retalhuleu, Suchitepequez, Peten, Alta Verapaz and Izabal (130,000 hectares) -The expansion of oil palm has come at the expense of household and communal lands -Has affected the production of basic grains and therefore the food security of families -Has led to changing lifestyles and the disintegration of indigenous communities - Contamination of water sources

Tenure Guidelines in The Northern Lowlands -Ancestral territory of the Mayan Q'eqchi', has a unique agrarian history - the Q'eqchi' people were stripped of their land ( ) -Land was transferred to communities under various types of legal classifications (Collective Agricultural Patrimony) -Collective Agricultural Patrimony: allowed for State regulation and traditional community internal practices to coexist -Process of land titling, supported by the World Bank through the Land Grant Program Phase 1

Tenure Guidelines -The selected guidelines help evaluate: -The role of the State in relation to: 1) The recognition and respect of tenure rights, 2) Conflict prevention and access to systems of justice; -The role of non-state actors (palm businesses in the area), in relation to: 1) Respect for the rights of tenure

The role of the State (1) Problematic Situation Relevant Guidelines (State commitments) Indicators Tenure rights of indigenous and peasant communities to land are not fully recognized and respected as private property Recognize and respect all legitimate tenure right holders and their rights. They should take reasonable measures to identify, record and respect legitimate tenure right holders and their rights, whether formally recorded or not; 1) The State establishes the legal and administrative mechanisms for the recognition of indigenous and peasant communities as holders of legitimate tenure rights. 2) The state formulates and implements an official strategy for recognition of holders and their rights. The expansion of monocultures (oil palm) and extractive industries threatens to displace and evict indigenous and peasant communities from land which they have legitimate rights to occupy Safeguard legitimate tenure rights against threats and infringements. Protect tenure right holders against the arbitrary loss of their tenure rights, including forced evictions 3) Number of forced evictions and/or violent acts reported by communities and/or civil society organizations. 4.5 States should protect legitimate tenure rights, and ensure that people are not arbitrarily evicted and that their legitimate tenure rights are not otherwise extinguished or infringed upon. 4) The State implements mechanisms to prevent land grabs and arbitrary evictions of indigenous and peasant communities. 5) The State implements specific programs and mechanisms for the recognition of the legitimate tenure rights of peasant and indigenous communities.

-There are laws for communities’ protection but in practice it is not clear the registry of communities and collective ownership. -The state has not yet recognized and integrated customary ownership systems of indigenous peoples -The state instead it has favored investment projects for the expansion of oil palm in Raxruhá and protected the interests of businesses

The role of the State (2) Problematic SituationRelavent Guidelines (State commitments)Indicators Instruments and judicial authorities do not exist to protect the communities against violation of the land rights Provide access to justice to deal with infringements of legitimate tenure rights. They should provide effective and accessible means to everyone, through judicial authorities or other approaches, to resolve disputes over tenure rights; 6) The State facilitates access to justice for indigenous and peasant communities to resolve violations of human rights relating to land tenure 7) prosecutors, courts, and the Office of Human Rights (PDH) have capacity to protect in cases of violation of land rights in the region is strengthened The lack of recognition of land tenancy rights generates a high level of agrarian conflict in the region Prevent tenure disputes, violent conflicts and corruption. 8) Mechanisms for dialogue and the actions of the Secretariat of Agrarian Affairs (SAA) are strengthened in the region 9) There is institutional presence in the Northern Lowlands (TBN) of the National Dialogue and the SAA, 10) A number of roundtables exist to address conflicts, 11) a land conflict early warning system is implemented.

-The state has not developed a land code or agrarian courts to facilitate access to justice for indigenous and peasant communities to resolve human rights violations -A Mediation Center exists but its scope is limited -The justice system is mono-legal and does not recognize customary ancestral forms -State agencies are monolingual, using only Spanish, even though the population is mostly monolingual (Q'eqchi in the affected areas)and illiterate

The role of non-state actors Problematic SituationRelavent Guidelines (State commitments)Indicators Tenure rights of communities are violated by the interests of agricultural and mining enterprises 3.2 (a) Business enterprises have a responsibility to respect human rights and legitimate tenure rights. 3.2 (b) Business enterprises should act with due diligence to avoid infringing on the human rights and legitimate tenure rights of others. 12) The State monitors and punishes companies that commit abuses against communities and legitimate tenure rights. 13) Presence of offices of state agencies that govern the actions of the companies in development and production stages.

-The institutional and legal framework has allowed preferential treatment to agribusiness companies in detriment of human rights and indigenous peoples -The companies do not meet the minimum standards set by environmental and labor laws -Diversion of the Candelaria river that runs aside the Candelaria Camposanto community; contamination of water sources, in the case of the Rub'el Quiche community -Land sales under pressure, damage to public road infrastructure, destruction of biodiversity, and violation of labor rights, among other damages

Conclusions -Collective Agricultural Patrimony are at high risk -The supervisory authorities of the Land Administration Program (financed by WB) and the Land Registry (RIC) should seek and promote the protection of collective rights of the beneficiary communities ("indigenous lands" or "commons" in ongoing cadastral processes) -A new layer of agrarian conflicts being set up by the sale of land rights within Collective Agricultural Patrimony and collective properties of co-owners

Conclusions -Protection of the collective property means protecting the rights of indigenous communities enshrined in the 1) Agreement on Identity and Rights of Indigenous Peoples (1996), 2) the ILO Convention 169 (1996) 3) Tenure Guidelines (2012), (signed or endorsed by the Guatemalan State)