Last week, on November 22nd, the Chilean Supreme Court issued its ruling on yet another indigenous consultation case and, once again, ruled in favor of the Chilean government. The Court found that consultation was not necessary in relation to the passing of a regulation that grants tourism concessions in protected areas — even protected areas that constitute ancestral lands for indigenous peoples. In doing so, the Supreme Court upheld — without additional discussion — the ruling made by the Santiago Court of Appeals in September.
The case in question was filed by the Consejo de Pueblos Atacameños who alleged that Decree 50, passed by the Ministry of Economy, Promotion and Tourism should have been subject to indigenous consultation under Convention 169. Decree 50, which was published this year, establishes a procedure through which the Ministry of Economy, in coordination with other state agencies, can grant tourism concessions within national protected areas to private individuals or entities.
The Decree was adopted without prior consultation with the potentially affected indigenous communities. Many of the communities that brought the case currently co-administer one of these national protected areas, the Reserva Nacional Los Flamencos, and the case was based, in part, on the potential for the Decree to impact their administration of the Reserve. They also argued the case on the basis of indigenous land and territory rights, given that the Reserve is located within their ancestral lands and thus any regulation of the Reserve potentially affects them.
The Appellate Court found, and the Supreme Court affirmed, that the Ministry had not acted illegally or arbitrarily in adopting the Decree and that the Decree includes a provision for ensuring local participation at the time of granting a tourism concession.
The Supreme Court’s decision can be downloaded (in Spanish) here.