CHAPTER 7 ENVIRONMENTAL LEGISLATION IN CHILE AND THE CHILEAN-CANADIAN ENVIRONMENTAL COOPERATION AGREEMENT

• Jurisdiction: United States

International Environmental Law for Natural Resources Practitioners
(Mar 1997)
CHAPTER 7
ENVIRONMENTAL LEGISLATION IN CHILE AND THE CHILEAN-CANADIAN ENVIRONMENTAL COOPERATION AGREEMENT
Jaime Undurraga
CODELCO Chile
Santiago, Chile

Good afternoon ladies and gentlemen. It's a pleasure to be invited here today to tell you about environmental legislation in Chile and how it is affected by the bilateral trade agreement my country signed with Canada last October.

Before I go into details, I'd like to relate a story that illustrates as well as anything I can think of how environmental management can be unintentionally overdeveloped in an underdeveloped nation.

A few years ago, a businessman decided to start a tourist operation on a lovely lake in southern Chile. It's a favorite spot for summer vacationers, and as part of his project, the businessman spent a considerable sum for a small luxury vessel for lake cruises. Because the lake was deep enough to handle ships of 100 tons or more, it was under the jurisdiction of the Navy and thus of the Ministry of Defense. The Ministry issued the businessman an operating permit for his vessel with no fuss.

But the lake also lies within the boundaries of a national park. And that puts it under the jurisdiction of the National Forest Service. The Service refused to issue the businessman a permit for his boat, and since the case involved overlapping environmental jurisdictions, it was finally settled before a judge. The good news is that the businessman got a permit for his expensive tourist vessel. The bad news is that by the time the matter was resolved, all the tourists had gone home for the season!

A decade or so ago, no one in my country would have expected that businessman to request a permit to operate a tourist vessel on a lake in a national park. The environment really only began to become an issue in Chile at the end of the 1980s. Before that, it was a topic of almost purely academic dimensions, limited to discussion in universities and private research centers.

At the government level, environmental issues were likewise not viewed with the comprehensive vision that we apply to them today. There were various government agencies that handled aspects of what is now called environmental

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management. But their perspective was limited to their own agency-specific concerns: health regulation, water usage, mining, fishing, or forestry and other natural resource-based activities. The Ministries of Health, Public Works, Agriculture and others all had specific powers laid down in a series of regulations, the oldest of which dates back to 1916.

Each one of these regulations was usually part of a separate and relatively independent body of law, such as the Health Code, the Water Code, the Mining Code, and so on. In many cases the regulations originated in environmental emergencies. For example, all of today's standards for the construction of mine tailings dams were revised following the collapse of a tailings reservoir at the El Soldado copper mine north of Santiago in 1965. The dam that crumbled unleashed a torrent of mud that buried more than 300 people.

Starting in the 1980s, Chile's economy began expanding steadily at a rate of more than 6 percent annually, and the country's industrial structure became notably more diversified. And so did regulatory activity in areas now considered environmental in nature. Issues once held to be the exclusive province of a single government agency came under the jurisdiction of others as well, although without coordination between the old and new enforcers.

Unfortunately government showed no great concern about reviewing existing laws, sometimes technically obsolete, and legislators neglected to eliminate or harmonize them with the new regulations that they kept approving. So naturally jurisdictional conflicts started to arise that hadn't been seen before, such as the one involving the hapless businessman and his lake-going tourist vessel. And I'd venture that some of the more recent environmental controversies in my country are traceable in part to this problem of overlapping jurisdictions between government agencies. In fact, a review conducted in 1992 found more than 1,000 laws and regulations on the books in Chile that touch on some aspect of the environment, and they all spell out specific jurisdictions for the agencies charged with applying and upholding them.

Let me shift gears now and tie this background in with Chile's new trade agreement with Canada.

As many of you will recall, Chile was invited to become the fourth member of the North American Free Trade Agreement at the Summit of the...