Yesterday, July 13th, the Chilean Supreme Court issued another important decision addressing ILO Convention 169, and in particular, the right to consultation. The Court broke with its recent pattern of rejecting Indigenous claims based on the right to consultation, and in this decision they ruled in favor of the Atacameño communities that brought the case and ordered the Government to consult.
The third chamber of the Supreme Court issued a unanimous sentence that orders the Comisión Regional del Medio Ambiente – Región Antofagasta (or COREMA, the Regional Environmental Commission for the Antofasta Region) to engage in consultation with affected Atacameña Indigenous communities with regards to the “Actualización Plan Regulador San Pedro de Atacama” (Updated Regulatory Plan for San Pedro de Atacama).
The case was brought by the Asociación Indígena Consejo de Pueblos Atacameños and the Atacameña Community of Toconao and concerned a COREMA resolution from September of 2010 that approved the Regulatory Plan. As part of that approval process, COREMA decided that the Plan required only an “Environmental Impact Declaration” instead of a more substantial “Environmental Impact Study.” The Indigenous claimants alleged that a full Environmental Impact Study was indeed required and that they were not consulted during the process, invoking their right to consultation under ILO Convention 169. The Appellate Court in Antofagasta originally rejected the claims of the Atacameña litigants in a decision issued in December of 2010.
Similar to other cases, the Government’s position was that consultation, as it is laid out in Convention 169, was not required because the Indigenous communities were not “directly affected” by the decision to approve the Plan. The Government attorney pointed to Chile’s environmental legislation — namely, Law 19.300 — to argue that the statutory criteria requiring a full Environmental Impact Study are the same criteria that should be used to determine whether a given decision “directly affects” Indigenous peoples for purposes of Convention 169. Thus, by concluding that only an Environmental Impact Declaration was required, the COREMA claimed that no consultation obligation arose. The Government also tried to argue that because its decision only related to a planning document, any effects that might occur were too remote and would involve intervening or additional steps before they would occur. Finally, the Government pointed to the fact that some citizen participation procedures were followed in the approval of the Plan Regulador.
The Supreme Court ultimately rejected these arguments. It found that consultation, as laid out in Article 6 of Convention 169, had not been carried out. The Court specifically noted that the participation processes that were implemented were far from satisfying the specific characteristics of consultation. The decision characterized those processes as “aimed at sharing information,” and found that providing information does not constitute an act of consultation with those affected since, in this situation, those affected do not have a real possibility to influence planning for the territory in which they are located. In the absence of a consultation process, the COREMA resolution was deemed illegal.
The Supreme Court ultimately declared the COREMA resolution without effect, found that a full Environmental Impact Study was necessary, and instructed the COREMA to carry out a consultation process with the effected Indigenous peoples that meets the requirements of Convention 169 before a proving a Regulatory Plan like the one in question.