Chilean Supreme Court upholds Indigenous rights vs. mining company

On Apr. 27, the Chilean Supreme Court affirmed a decision by an appeals court to cancel the environmental permit granted to the Canadian mining giant Goldcorp for the El Morro gold and copper mine in the northern Chilean region of Atacama.

The Court ordered the company to consult with the Diaguita de los Huascoaltinos Indigenous community before carrying out any activity in their territory.

The El Morro open pit mine is a 3.9-billion-dollar 14-year project that is expected to produce 2,200 tons of copper concentrate per day.

The project would affect 2,500 hectares stretching from the Andes mountains to the Pacific coast, including large areas of land belonging to the Diaguita native community.

The Court also ruled that the company must carry out a more thorough environmental impact assessment, which must also take into account the resettlement of local communities and effects on the traditional way of life of the Diaguita Indians.

Interesting, the Court applied international law and stated that the company violated International Labour Organisation (ILO) Convention 169 Concerning Indigenous and Tribal Peoples, Chile’s Indigenous Law, and the United Nations Covenant on Civil and Political Rights.

"The sentence in the El Morro case reflects legal precedents in Chile guaranteeing respect for the right to prior consultation of indigenous people with regard to measures that directly affect them, according to the ILO convention," Consuelo Labra, a lawyer with the Citizen’s Observatory, the organisation that sponsored the legal action, told IPS.

According to ILO Convention 169, native peoples have the right to be consulted on matters affecting their territories and way of life, before those activities commence.  

The press writes:  "In late 2009, when the government of Michelle Bachelet (2006-2010) was coming to an end, decree-law 124 established a temporary regulation. But it ended up standing in the way of the implementation of consultation processes," Hernando Silva, the head of the Citizen’s Observatory legal department stated.

He also added that Chile lags far behind other mineral-rich countries in the region like Peru and Bolivia, who have adopted national laws on prior consultation with Indigenous peoples.

Sergio Campusano, president of the Diaguita de los Huascoaltinos agricultural community, said the mining project not only affects the environment, but also the native community’s own development plans.  "we are ‘guardians of nature’, because that is what we are – it is in our nature. Mining projects do not fit here," he said.

The Supreme Court ruling was not unprecedented.  For the past three years, indigenous communities have filed legal actions demanding the Chile comply with ILO Convention 169.

The first case was won by a Mapuche community in the southern city of Lanco, who were not consulted with respect to the construction of a garbage dump near their homes.

Another victory involved a controversial wind farm on Chiloé Island in southern Chile, which the Supreme Court halted due to the company’s failure to properly consult with local Mapuche communities.

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