Later on in the 2-hour hearing, the judges sought the opinions of the two experts who have been advising the court and the litigants on how best to move ahead with implementation. Professor Rosa Celorio shared her concerns with the court on how this FPIC document could escalate tensions between the two sides:
Justice Jacob Wit - CCJ Judge
"We have read the expert reports very carefully. We got the impression that the experts are really not very far apart. They may have some differences of opinion about representation, or they might have some differences about the clarity of the document, or some things could be put in a better way. But basically, that is our impression. They are not very far apart."
Dean Rosa Celorio - Expert Witness
"While I recognize when you look at the protocol, there's a recognizable effort, right, from the government to make sure that there's language that's in conformity with international law, that advances, motivates, or promotes that compliance with the CC consent order. There are five specific issues that, for me, are warning signs. I mean, and there are warning signs in the sense that if they're not modified in some way, I have a feeling that this tool is going to have a lot of problems in its implementation on the ground, based on the experience that we've already had, This means that this is going to be a barrier to have proper compliance with the CCJ Consent Order. It's very clear in international law that the Maya people should be the ones choosing their representation during consultation and consent processes. So, any language in the FPIC protocol related to representation should be drafted by the Maya people. The orientation of international law is that informed consent is needed. Right. And I think having that signal in the title is paramount. I mean, the reality is that this is also a practical document. It's a training document. And I think having a title that just as consultation is sending the wrong signal. The reality is that numerous government actors are going to review this protocol. Third-party actors are probably going to review this protocol, as well. We've seen in the concluding reports all these third-party actors that are involved in these processes. You want to send a clear signal that the goal is to achieve consent. And I'm afraid of that title, especially in this moment in international law, that just says consultation. And I also think the connection between consultation and consent I would like to see it more clearly stated in the protocol. The way this FPIC Protocol has been managed, you know, the fact that the CCJ received this active protocol from one side, while the other side is very unhappy with the protocol, for me, it's concerning. The reality is that you can have an amazing document, but if there's no confidence in the document, there's no trust between the parties. We're going to have a problem."
The court also heard from Dr. Isabel Figueroa, the expert who advised the government on the crafting of the controversial FPIC Protocol. Here's what she had to say about the complaints from the Mayan litigants:
Dr. Isabel Figueroa - Expert/Crafter Of the Final FPIC Document
"The name of the protocol is not regulated by international law. There is no international standard that says that the protocol has to be called consultation or consent. No, that was part of our discussion — an internal discussion in the government, and my concern, when I was advising the government was to make clear the words. So, we started a conversation about how some of the words would be translated to the Ketchi and Mopan. It was the result of a good-faith intent to create a name where it would be easier for the Mopan and Ketchi to understand. And this process of thinking about the translation of the legal terms is part of international standards because it's part of culturally-appropriate methods of communicating legal standards. So, there is no document from the international organization [which] says that the protocol has to have this name or that name."
Justice Winston Anderson - CCJ Judge
"I do understand, and I agree with you. But at the same time, the norm in international law is that the consent of indigenous peoples is required. No, of course, in some extraordinary circumstances, which we can come to in a minute. So, what I'm asking is, since the MLA, TAA, and so many of the Maya people that they represent would prefer if consent were in the title of the protocol, I'm just wondering whether there's a big obstacle to doing that from your point of view?"
Dr. Isabel Figueroa
"No, that's what I'm saying. This is not a legal issue. This is a political issue. Those issues are not for a legal expert to answer because that would be for the government; for our organizations to decide whether it is going to call [it] this name or that name. I think I believe that my role here is to make sure that the wording of the protocol is according to international law."
The Government is expected to meet with the Toledo Alcaldes Association within the next 2 weeks. A report will be submitted to the court, and that's when a decision will be made on whether or not there is a need for another urgent compliance hearing.
