MINING IN PROTECTED AREAS: THE CHILEAN EXPERIENCE

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment
(Apr 2013)
CHAPTER 11A
MINING IN PROTECTED AREAS: THE CHILEAN EXPERIENCE
Juan José Eyzaguirre
Mario Mozó
Partner, Philippi, Yrarrázabal, Pulido & Brunner Abogados
Santiago
Chile

JUAN JOSE EYZAGUIRRE LIRA is a Partner of Philippi, Yrarrázaval, Pulido & Brunner Abogados in Santiago and head of the Environmental & Energy Group of the firm. He has more than 15 years of experience in environmental and natural resources matters. He holds a Master in Environmental and Natural Resources Law from Lewis & Clark Law School, USA. Mr. Eyzaguirre has been a Professor of the Master in Environmental at the Universidad de Chile and Director of the Master in Environmental Law at Finis Terrae University. He is a member of the Bar Association of Chile. Abogado, socio del estudio de abogados Philippi, Irarrázabal, Pulido & Brunner. Cuenta con más de 15 años de experiencia en la prestación de asesorías legales ambientales a nivel nacional e international. Master en Derecho Ambiental y Recursos Naturales de la Universidad Lewis & Clark de Estados Unidos. Profesor del Magíster de Derecho Ambiental de la Facultad de Derecho de la Universidad de Chile Y Director del Magíster de Derecho Ambiental de la Facultad de Derecho de la Universidad Finis Terrae.

I. Introduction

Chile possesses a mining regime which has historically established a clear, strong and solid protection to the development of mining activities and to the ownership of mining rights, granting several legal mechanisms of protection, some of them even with a constitutional range. In such context, since the 1990's, several environmental provisions have been introduced to the Chilean legal regime, thus imposing new challenges to existing activities, such as mining, energy, fishing, forestry, among others.

In addition, Chile entered into several international conventions associated with environmental matters --specifically in connection with the promotion of nature's preservation and protection of biodiversity-as well as the enactment of internal provisions in order to protect specific areas which contain valuable environmental components such as endangered species (both flora and fauna), cultural sites, touristic areas, astronomically valuable spaces, etc.

With more than 20 years since the introduction and enactment of the environmental regime, the type and amount of different protected areas has increased, as well as the requirements to execute mining activities therein. In such context, the mining sector has faced several challenges in order to carry out their investment projects, derived from the existence of public scrutiny, media's attention and NGO's opposition.

Based on the above, this brief paper shall address the Chilean experience related to the execution of mining activities in "no go" areas, such as parks and reserves, and the difficulty in achieving balance between the protection of the environment through the creation of protected areas, and the development and growth of a relevant industry such as the mining sector.

II. Legal Framework Applicable to Protected Areas.

a. Provisions contained in International and Domestic Law regarding Protected Areas.

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Chile lacks of a comprehensive and systematic regulation providing a system of protected areas, i.e., a group of duly jointed protection categories, with clear and enforceable rules for both private individuals or entities and organisms with environmental competence.¹ On the contrary, the legal regime regarding protected areas-in addition to being out of date- is spread over several sectorial provisions that establish particular protection statutes, with different purposes, restrictions and competences, and is oftentimes contradictory. In this context there are several rules that regulate the execution of activities and projects inside protected areas. Nevertheless, the last amendment of the environmental law in 2010,² included an express provision on this issue providing that "within one year as of the publication of this law, the President of the Republic shall send to Chilean Congress one or more projects of law by means of which the Biodiversity and Protected Areas Office is created, and the National Forest Corporation is transformed into an independent public service" (article 8 transitory).³ Currently, said project is being discussed in the National Congress.

Moreover, it shall be noted that the most important statute regarding protected areas -Law No. 18,362 creating the National System of Wild Protected Areas of the State- is not yet effective after more than 20 years from its enactment.⁴ Despite the fact that Law No. 18,362 has not become effective, there is an important international treaty that has partially replaced the lack of regulation on this matter: the Washington Convention on Nature Protection And Wild Life Preservation In The Western Hemisphere (hereinafter the "Washington Convention"). Such regulation -ratified by Chile in 1967- has been a key factor for the regulation of wild areas in our country, being invoked in numerous times by administrative authorities and Courts of Justice. Nevertheless, such Convention dates from year 1940 without being amended or updated in accordance to the new guidelines of international environmental law. Besides the foregoing, it contains very general provisions, with no rules toward the enforcement of them.⁵

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It shall also be noted that the Washington Convention only regulates some of the existing protected areas, namely: virgin regions reserves, national parks, natural monuments and national reserves (article 1 of the Convention). Other laws regulating protected areas are Law No. 17, 288 (for nature sanctuaries), Law. No. 20,423 (for tourist interest areas), the Ramsar Convention (for wetlands of international importance), etc. Thus, due to the dispersion of the regulation on this matter, is necessary to take into consideration the definition of protected area.

i. Definition of protected area.

Notwithstanding the previous existence of the Washington Convention, the concept of protected area was legally defined by the Regulation of the Environmental Impact Assessment System (hereinafter "SEIA"), which was enacted by the end of the 90's decade. As it will be analyzed in the corresponding section, this definition has great relevance in light of the execution of mining projects within protected areas.

In such context, letter a) of article 2 of the Regulation, states that a protected area is "any portion of territory, geographically delimited and established by act of public authority, placed under official protection with the purpose of ensuring biodiversity, promote the preservation of nature and conserve the...