Last Friday, November 16th, the Court of Appeals in Santiago struck a blow to indigenous rights when it issued its ruling in three cases brought by indigenous communities and organizations to halt a number of geothermal exploration concessions that were granted without prior consultation. In each instance, the Santiago Court of Appeals ruled in favor of the Energy Ministry, which was responsible for granting the concessions earlier this year.
The three cases were filed separately by the Consejo de Pueblos Atacameños (Sentencia Rol. 12533-2012); the Comunidad Indígena Huenchullán (Sentencia Rol. 9431-2012); and the Comunidad Indígena Manquilef Hue Che together with the Comunidad Indígena Francisco Huencumil (Sentencia Rol. 12652-2012). At stake in the case are eight geothermal concessions that were alleged to be located within indigenous territories of the Atacameño in northern Chile, and the Mapuche in southern Chile. All of the concessions were part of the same public bidding process that dates to 2010.
In comparison with other Chilean jurisprudence on the right to consultation, these cases were unique in that they attempted to secure indigenous consultation in the early phases of development projects. While most cases have dealt with consultation in the context of environmental impact assessments, all three of these geothermal exploration concession cases argued that under international standards, consultation is triggered much earlier in the development process.
However, as the Chilean courts have tended to do in multiple cases dealing with the right to consultation, the Appellate Court here found that a concession for geothermal exploration—despite being located within indigenous territory—does not meet ILO Convention 169’s standard of consultation being required when the measure in question “may directly affect” indigenous people. Rather, the Court indicated that consultation may be required at a later point in the project’s development.
It is likely that all three of these cases will be appealed to the Supreme Court.