On July 27, 2010, the Court of Appeals in Puerto Montt issued a decision on a land rights and consultation case involving the Comunidad Mapuche Huilliche Pepiukelen and the Empresa Pesquera Los Fiordos, Ltd. Although tensions between the company and neighboring indigenous communities are not new, this case highlighted recent conflicts surrounding construction work that the company was carrying out on a lagoon.
While the CONAMA (Comisión Nacional del Medio Ambiente) had issued the necessary approvals for the project and given indications that environmental impact studies were not necessary, the neighboring indigenous communities alleged that the project would cause environmental harm, as well as interfere with their ethnotourism development activities. The community additionally alleged that the project interfered with cultural and religious practices. The Court ruled in favor of the indigenous community, ordering the company to abstain from further projects and return the project in question to the state it was in prior to construction.
Notably, in its ruling, the Court invoked provisions of ILO Convention 169 on Indigenous and Tribal Peoples, most importantly the right to consultation found in Article 6 and the concept of indigenous lands expressed in Article 13.
With regards to consultation, the Court concluded that the right to consultation recognized in ILO Convention 169 is distinct from the right to participation protected in the national Environmental Impact Law. Furthermore, citing to the Constitutional Court, the right to consultation is self-executing and thus can be invoked before the courts even in the absence of enacting legislation. Given that a portion of the construction was occurring on lands certified by CONADI as indigenous lands, there was an obligation to consult. Although the results of the consultation are not binding, the Court held that it must still occur in a form that is appropriate to the circumstances, in good faith, and with the objective of reaching a consensus with the affected indigenous peoples.
The Court also made notable findings with regards to indigenous lands, stating that the concept of indigenous lands today, by application of Article 13(2) of Convention 169, is broader than that established previously in Articles 12 and 13 of the Indigenous Law (Ley Indígena) and includes the totality of the area occupied or used in any matter by the interested peoples. In the case in question, the decision hinged not only on CONADI’s certification of the lands as indigenous, but also because the lands in question form part of the indigenous community’s habitat.
The case citation is Rol. 36-2010, Corte de Apelaciones de Puerto Montt, Foja 359.