Recent court ruling on indigenous water use rights in Chile could have implications on geothermal

Alexander Richter 1 Dec 2009

While reported in the context of mining the recent ruling on indigenous water rights in Chile could have implications for the geothermal development in the country.

According to the news, “Chile’s Supreme Court last week handed down a landmark ruling on indigenous water rights in a case that pitted Region I Aymara communities against Agua Mineral Chusmiza, a company seeking the rights to bottle and sell freshwater from a source used historically by Aymara indigenous residents.

The court ruled unanimously in favor of granting a water flow of 9 liters per second to Chusmiza and Usmagama communities. It applied Convention 169 of the International Labor Organization (ILO), an agency of the United Nations that was awarded the Nobel peace prize in 1969. The legal dispute had been festering for 14 years and centers on community water rights in one of the driest deserts on the planet.
Luis Carvajal, director of the Aymara communities, described the joy community members felt upon learning of the ruling: “We cried, we sang, I can’t describe it…this is history, an enormous precedent to ensure that water is not taken away from other communities.”

The Supreme Court decision on Aymara water rights upholds rulings by both the Pozo Almonte tribunal and the Iquique Court of Appeals, and marks the first judicial application of ILO Convention 169 in Chile. Lawyers for the indigenous communities said the decision strikes a blow against ironclad private licenses provided by the 1981 Water Code, which they say is a leftover from the Pinochet dictatorship.

The ruling’s potential impact on major industries such as mining could be far reaching, since water supply is an important factor in the feasibility of many mining projects. Chile’s mining community – state-owned and private sector – accounts for more than 50 percent of all exports and is the backbone of the nation’s economy.

Rodrigo Weisner, the director of the state’s Water Control Board (DGA), indicated that while he thought previous interpretations of property rights and the Water Code “appeared untouchable,” this is not the first decision upholding of indigenous water rights. He believes that the government is simply working proactively to reassure communities that they will have continuing access to freshwater.

The ruling highlights the growing pressures on limited freshwater resources, compounded by effects of climate change on glaciers in the headwaters that regulate water flow. The World Health Organization estimates that 1.7 billion people lack access to clean water, and the UN Human Rights Commission has been considering a declaration of water as a basic human right.

Environmental groups issued a statement applauding the ruling, calling it the first step in reclaiming resource rights from private, oftentimes foreign-owned, businesses and restoring them to the public realm.

But indigenous groups see a greater significance. They believe the decision to be a pivotal change in the legal framework addressing their territorial claims. Activists point out that ILO Convention 169 refers broadly to resource rights, and can be extended to all natural resources within aboriginal use areas, including forestry, hydroelectric and geothermal energy.

The convention, adopted by the ILO in 1989, is only the second international law instrument to deal with indigenous human rights. Chile ratified the ILO 169 convention in September, 2008, and it took effect on year later.  The ratification of ILO 169 means Chile’s laws must be consistent with the rules of the convention.”

Source: Santiago Times