On October 14, 2010 the Supreme Court upheld a decision against a number of Lafkenche communities in the Mehuin area of the Los Ríos region in Chile. The case concerns the construction of a duct to discharge treated waste water from a cellulose plant in Valdivia into the ocean. The plant belongs to the company Celulosa Arauco y Constitución, S.A. In February of this year, the company submitted an Environmental Impact Study related to the project to the Comisión Regional del Medio Ambiente for the Los Ríos region. TheComisión ultimately approved the Environmental Impact Study via resolution. The Lafkenche communities involved in the case contested the legality of that approval arguing, among other things, that their right to consultation was denied.
Last May, the Court of Appeals of Valdivia issued a decision in favor of the company and against the Lafkenche communities. Following the unfavorable appellate decision, the communities appealed to the Supreme Court. Similar to other Chilean court cases that have been decided since ILO Convention 169 went into effect one year ago, the central issue in this case was the right to consultation—recognized in Article 6 of the Convention.
Both the Appellate Court and the Supreme Court acknowledged the existence of this right, as well as its foundation in both international and domestic law. However, both Courts also highlighted the need for flexibility in implementing consultation at the domestic level—a principle that has basis in Article 34 of ILO Convention 169. In consideration of the need for flexibility, the Appellate Court and the Supreme Court referred to the intensely debated Decree 124—passed amidst much controversy in 2009 to regulate the right to consultation—and the citizen participation mechanisms that are a part of the environmental impact assessment procedure. The sentences from both courts indicate that citizen participation mechanisms are sufficient to comply with the right to consultation. To put it another way, the Court is stating that when consultation occurs with the general public, no additional consultation with Indigenous peoples is required to meet the rights spelled out in ILO 169.
The Supreme Court decision provides some insight into the Court’s thought-process on arriving at this conclusion. While noting the importance of consultation procedures in affording Indigenous peoples a mechanism for participation, the Court pointed out the non-binding nature of those consultations. More importantly, the Court placed the consultation question in the broader context of State sovereignty and clearly stated that sovereignty resides only with the Chilean government and cannot be supplanted by a single group within the population. In this regard, the Court noted that the right to consultation does not confer on Indigenous peoples any particular legal power or authority.
After briefly summarizing the consultation process it found to have taken place—essentially, a series of workshops and meetings—the Court was careful to point out that the central components of consultation—good faith, the objective of reaching agreement, and the use of appropriate procedures—were all complied with as part of the citizen participation mechanism.
The Supreme Court decision included the dissenting opinion of Minister Haroldo Brito, who stated that the requirements of consultation found in ILO 169 had not been met.