Indigenous Focus: Chile’s Supreme Court Confronts Consultation, Identity
SANTIAGO — Last week, Chile’s Supreme Court issued another decision in favor of indigenous peoples. This adds to the list of recent decisions that are slowly advancing in Chile the indigenous right to consultation. This latest decision involved the Comunidad Agrícola los Huasco Altinos and the “El Morro” mining project, owned by Sociedad Contractual Minera El Morro.
Similar to other indigenous consultation cases that have been recently decided by the Supreme Court, this case questioned a favorable environmental assessment ruling issued by the Regional Environmental Evaluation Commission in March 2011.
However, this case presented a unique twist: the community bringing the case is not technically recognized as an “indigenous community”. Therefore, the land that the project affects, and which are titled to the community, are not technically recognized as “indigenous lands”.
This lack of recognition is in part because the community involved is made up of members who self-identify as the Diaguita people, an indigenous population that wasn’t recognized by Chile until just a few years ago, in 2006. Their community organization and land titles thus pre-date their recognition as an indigenous people.
The community’s claims primarily rested on the argument that when environmental impact studies were conducted for the El Morro project, and when the government assessed those studies, both the company and the Chilean government failed to apply legal protections that relate specifically to indigenous peoples. This is demonstrated most clearly in Chile’s 1993 Indigenous Law and ILO Convention 169. Both of these laws include special protections for indigenous lands, and natural resources, as well as for consultations that were not applied to the El Morro project evaluation.
Ultimately, the Supreme Court decided in favor of the Diaguita community and ordered that the environmental assessment be repeated. This time, the analysis will be done with a consideration of indigenous legislation and rights.