FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE AND COMMUNITIES IN CHILE

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (April 2017)
CHAPTER 18C
FUNDAMENTAL RIGHTS OF INDIGENOUS PEOPLE AND COMMUNITIES IN CHILE
Gonzalo Grez
Partner
Cariola Díez Pérez-Cotapos & Cía, Ltda.
Santiago

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GONZALO GREZ is one of the partners that head the Natural Resources and Mining Group of Cariola Díez Pérez-Cotapos, in Santiago, and handles matters involving Mining, Corporate and Commercial Law, M&A, Project Development, Communities and Indigenous Rights, Water Rights, Foreign Investment and Contracts. He serves as legal counsel to a number of local and foreign companies, assisting in different processes of acquisition and divestment of companies or assets, private and public bids, cross-border transactions, project finance, due diligence, preliminary agreements and negotiation and drafting of contracts, including development of strategy and corporate structures, community strategy and regulatory issues. He has been the Director of the Post Graduate Program named "Natural Resources and Environmental" at the Universidad de los Andes since 2015; Professor of Corporate and Commercial Law at Pontificia Universidad Católica de Chile since 2001; and Vice Chair of the Energy and Natural Resources Committee of the IPBA. Gonzalo has participated in several international congresses as speaker or moderator and one of his recent articles was included in the book named "Indigenous Rights in South America" sponsored by Rocky Mountain Mineral Law Foundation. Gonzalo studied law at the School of Law of Pontificia Universidad Católica de Chile, where he graduated in 1994 with honors and was admitted to the bar in 1995. In 1998 he earned a Master of Laws (LL.M.) from Northwestern University, School of Law, Chicago, US. He is a member of the Chilean Bar Association; the Inter Pacific Bar Associations and the Rocky Mountain Mineral Law Foundation. He is mentioned as an expert in the mining field by Chambers & Partners and has been nominated as among top Mining Lawyers in other publications.

BIO: Gonzalo Grez is one of the partners that head the Natural Resources and Mining Group of Cariola Diez Pérez-Cotapos that deals with matters involving Mining, Corporate and Commercial Law, M&A, Project Development, Communities and Indigenous Rights, Water Rights, Foreign Investment and Contracts. He serves as legal counsel to a number of local and foreign companies, assisting in different processes of acquisition and divestment of companies or assets, private and public bids, cross-border transactions, project finance, due diligence, preliminary agreements and negotiation and drafting of contracts, including development of strategy and corporate structures, community strategy and regulatory issues.

He has been the Director of the Post Graduate Program named "Natural Resources and Environmental" at the Universidad de los Andes since 2015; Professor of Corporate and Commercial Law at Pontificia Universidad Católica de Chile since 2001 and Vice Chair of the Energy and Natural Resources Committee of the IPBA.

Gonzalo has participated in several international congress as speakers or moderator and one of his recent articles was included in the book named "Indigenous Rights in South America" sponsored by Rocky Mountain Mineral Law Fundation.

Gonzalo studied law at the School of Law of Pontificia Universidad Católica de Chile, where he graduated in 1994 with honors and was admitted to the bar in 1995. In 1998 he earned a Master of Laws (LL.M.) from Northwestern University, School of Law, Chicago, US. He is a member of the Chilean Bar Association; the Inter Pacific Bar Associations and the Rocky Mountain Mineral Law Foundation.

He is mentioned as an expert in the mining field by Chambers & Partners and has been nominated as among top Mining Lawyer in other publications.

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This is a summary of Chapter Five corresponding to Chile of the Book Indigenous Rights in South America - FPIC and Other Key Issues for Natural Resource Developments, Ed. Rocky Mountain Mineral Law Foundation, U.S.A. Colorado, 2016.

I. Introduction.

The recognition of indigenous people and communities, as well as the regulation of their relationship with different industries, the State and other members of the Society, is an unavoidable subject for almost all Governments and Natural Resources Companies operating in Latin America and worldwide.

While the Chilean Constitution, Chilean Constitutional Organic Law on Mining and Chilean Mining Code (and regulation issued thereunder) have been in place and in force since 1980, (without material amendments) several other bodies of law related to the mining activity have been issued/amended in the last 10 - 15 years.

For instance, Law N° 19,300 or Environmental Framework Act ("LGBMA" for its Spanish acronym), governs since 1994 the SEIA,¹ environmental management instruments, environmental liability, enforcement of environmental protection regulations, the environmental protection fund, etc. This regulation was materially amended and complemented by Law N° 20,417 (2010) which created and regulates the Environmental Ministry, the Environmental Evaluation Service and the Environmental Superintendence, which is the public entity in charge of overseeing the compliance of environmental regulation, and is empowered to impose sanctions in cases of non-compliance.

Likewise, LGBMA was materially completed by its new "Reglamento" (the regulation issued thereunder) in Supreme Decree N° 40, 2012, of the Environmental Ministry ("RSEIA" for its Spanish acronym) that regulates in detail the SEIA procedure. In connection to the forgoing matters, Law 20,600 (2012) created the Environmental Courts.

Another example relates to ILO 169 Convention, which though ratified by Chile during 2008 and enforceable since 2009, has its regulation related to the consultation process in force in 2014.

II. Applicable Legislation.

For a Civil Law country as Chile, of which some of the main legal bodies, including the Civil and Commercial Codes, were enacted during the XIX century, the recognition and protection of indigenous groups is relatively new and has been regulated by national and supranational norms. The strongest legislative attempt in this matter is Law No. 29,253 (1993) on Indigenous People and Communities (the "Indigenous Law"), "in which, for the first time, the Chilean Government recognized rights that were specific to indigenous people and expressed its intention to establish a new relationship with them."²

The Indigenous Law, in force since 1993, has been the largest effort so far to regulate the issues related to indigenous groups in Chile. Such regulation establishes rules on protection, promotion and development of indigenous communities and people in Chile.

The main issues addressed by the Indigenous Law include, but are not limited to:

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• The legal recognition of Indigenous people and communities;

• The creation of the National Corporation for Indigenous Development ( Corporación Nacional de Desarrollo Indígena or "CONADI"); and

• The creation of an Indigenous Land statute, destined to its protection and expansion.

Other laws that address indigenous aspects in our country include Law 20.249, which created the Coastal Marine Area of Indigenous People, and the above indicated LGBMA.

Additionally, the ILO Convention of Indigenous and Tribal People No. 169 ("ILO 169") was ratified by Chile in 2008 and is enforceable since 2009. Its application in Chile is regulated by Supreme Decree No. 66³ ("Supreme Decree 66/2013") in force since 2014.

III. Indigenous People in Chile.

Article No. 1 of the Indigenous Law provides: "The State recognizes that Chilean indigenous people are the descendants of human groups that have existed in the country since Pre-Columbian times, who preserve their ethnic and cultural manifestations, the land being the principal foundation of their existence and culture."⁴

This Article includes a list of the specific groups that are considered indigenous in Chile: Atacameño, Aymara, Colla, Diaguita, Kawashkar, Mapuche, Quechua, Rapa Nui, and Yagán people. Although the Indigenous Law establishes that the State recognizes nine main groups, this list is currently exhaustive, as no other indigenous groups are recognized in our country.

However, the Diaguita people were only recognized as an indigenous group and included as beneficiaries of the Indigenous Law in 2006, after a long process of investigation. Until 2001, it was believed that the Diaguita people were extinct. However, according to the report prepared by the Commission for the Historic Truth and New Treatment with Indigenous People (Comisión de la Verdad Histórica y Nuevo Trato con los Pueblos Indígenas), created by the Chilean government, several people from the central northern valleys of Chile identified themselves as Diaguitas and had maintained unique cultural and historical practices from pre-Columbian times.⁵ As a consequence of this, former President Michelle Bachelet signed a bill that extended the benefits of the Indigenous Law to the Diaguita people and communities.

Specifically, according to Article No. 2 of the Indigenous Law, indigenous people are:

a) Those who have an indigenous father or mother, whatever the nature of their filiation, including adoptive filiation. For this law's purpose, an indigenous father or mother is a person who descends from the original inhabitants of the lands identified as indigenous by the Indigenous Law;

b) Those who are descendants of the indigenous groups that inhabit the country, provided they have at least one indigenous last name. A non-indigenous last name will be considered indigenous for the purposes of this law, if its indigenous origin is recognized for generations; and

c) Those who maintain cultural traits of an indigenous ethnic group, that is, who practice the ways of life, customs and religion of

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