Blog Entry

Chileans Go to the Polls to Vote on Historic Eco-Constitution

Viviana Herrera

Latin America Program Coordinator

The following article relies heavily on the incredible podcast produced by the Latin American Observatory for Environmental Conflicts (OLCA), a Chilean-based environmental organization who has been closely monitoring and organizing around the draft constitution. We are grateful to the continued work of OLCA and other Chilean grassroots organizations whose voices are largely being left out of Canadian media coverage of the constitutional process. Access the full podcasts here

Chileans go to the polls this Sunday to vote on whether to adopt a new constitution that centres the protection of water and the environment as key pillars in the fight against the climate crisis. And for a number of Chileans, the long struggle to secure human rights and environmental protections has brought a major opportunity – by being elected to be part of the constituent assembly tasked with drafting the new constitution. 

One of them is environmental activist Constanza San Juan, who is known for her defence of water and glaciers from the harms caused by the open-pit Pascua Lama project owned by Canada’s Barrick Gold. Constanza was elected to be one of the 155 constituents tasked with drafting the new constitution and played an important role in the discussions around the role of the environment and natural resources. Her position has always been clear: “We need to completely change the extractivist model to one that is in harmony with nature…Mining has brought nothing but poverty.” 

This sentiment is echoed by Alejandro Valdés from Putaendo Resiste who told MiningWatch: “A Constitution will not resolve all of our daily issues; however, it will create the foundation on which to enact future change through legislation. And this two-headed giant [mining] will be made smaller and we will take back the State for the benefit of the people.” Alongside his community, Alejandro has successfully organized against Canadian company Los Andes Copper and its Vizcachitas copper project – a project being marketed as a “green” solution to the climate crisis, while affected communities remain staunchly opposed as they fight to ensure their lands are not sacrificed in the name of the energy transition. 

The content for the draft constitution, which is a direct response to the 2019 social upheaval, has deep roots: economic inequality and high costs of living; a dictatorship-era constitution which severely restricts civil liberties; privatization of water and the prioritization of resource extraction over environmental protections; and widely unequal distribution of social services like health care and pensions for the working population, among others. The proposal reflects popular struggles for water, land, education, and housing, and has been dubbed the first feminist constitution in the world for its protections of sexual and reproductive rights. 

First ecological constitution in the world 

The Latin American Observatory for Environmental Conflicts (OLCA) has been at the forefront of the constituent process by organizing workshops and discussing key points in its “Eco-Constituyendo” podcast. OLCA provided MiningWatch with the following six highlights from the draft constitution as they relate to the protection of water and communities in the face of mining. 

1. Nature as a rights-bearer 

From its very first article, the draft constitution recognizes that nature has a right to exist and acknowledges the interdependence of human beings and nature. Article 9 states, “Individuals and peoples are interdependent with nature and together, they are an inseparable whole. Nature has rights. The State and society have the duty to protect and respect them.” This is significant. As OLCA notes, “This is an ethical and cultural shift for the country… In a context of climate change, and an ecological and civilizational crisis, it is vital to construct a future for present and future generations and for the ecosystems as well.” 

2. Chile as a plurinational state and Indigenous Peoples have rights to FPIC 

From the first article, the draft constitution sets the tone in terms of Indigenous rights, declaring Chile a plurinational state. Seventeen Indigenous representatives from 10 nations formed part of the Constituent Assembly, in part to ensure Indigenous voices were included and their rights protected. Article 66 enshrines the rights of Indigenous peoples to free, prior, and informed consent (FPIC), requiring explicit consent for projects that may affect them or their territories – including mining activities. Article 191 (2) states, “Indigenous peoples and nations must be consulted and shall grant free, prior and informed consent in … matters that affect their rights recognized in this Constitution.

3. Right to clean air and the creation of a Nature Ombudsperson 

The draft constitution expands environmental protections to include “the right to a healthy environment and specifically the right to clean air,” and is the only constitution in the world to do so, as noted by UN Special Rapporteur on Human Rights and the Environment David Boyd. 

A Nature Ombudsperson would also be created as part of efforts to strengthen environmental regulations. The office would be a primary place where affected communities and organizations could file complaints about socio-environmental harm caused by resource extraction projects – including by Canadian companies – and would be an ally in advocating on behalf of affected communities with other state authorities. Organizations like OLCA expect that this newly-proposed Ombudsperson would have a positive impact on the outcome of future socio-environmental conflicts. 

4. Ending the privatization of water by making sanitation and access to water a human right

The draft constitution upholds water as a common good that is non-appropriable (Article 134), marking a significant change in terms of the commodification of nature even as Chile’s watersheds are drying up. Of Chile’s 346 comunes (comunas), 188 are facing significant water shortages, 16 have rivers dried up, and 400,000 households are currently dependent on trucked water – exemplifying the unjust water crisis created by the current constitution’s policies around water use.” This new constitution could be a turning point. 

The draft also provides for the creation of a new governmental body, the National Water Agency, which would be created within the first year of adopting the constitution. It would be responsible for the “sustainable use of water for present and future generations, access to the human right to water and sanitation, and the conservation and preservation of its associated ecosystems,” thereby ending the highly-opposed policies of water privatization. 

5. Mining stripped of its constitutional protections and salt flats treated as wetlands rather than mines 

Under the current constitution, the mining sector is given status as a protected economic activity, which is something no other economic activity in the country is granted. Mining still appears in the draft constitution but no longer holds the same constitutional guarantees – important given that mining was previously given priority over any other economic activity or way of life. Now, mining would be treated on par with other activities, meaning that different economic strategies could coexist in the same region. 

Likewise, with regards to lithium mining in the salt flats, the draft constitution no longer places the salt flats in the category of mining and instead, classifies them as wetlands and subject to important regulations for environmental protection. 

6. Ban on mining in glaciers and protected areas 

According to Article 11 of the draft constitution, “The State guarantees the protection of glaciers and the glacial environment, including frozen soils and their ecosystem functions.” Article 24 goes further in stating, “Glaciers, protected areas, those that for reasons of hydrographic protection are established by law, and others declared by law, shall be excluded from all mining activities.”

There are currently multiple mining projects in high-altitude glacial areas that are essential to protecting watersheds and are an important source of water in drought-facing regions. 

The draft constitution reflects the demands of Chileans and must be respected by the Canadian government and Canadian companies

In the context of the climate crisis, a draft constitution that prioritizes the health of the planet is inspiring. In particular, the proposed ban on mining in glaciers and protected areas is excellent news for the Andean watersheds that provide water to cities, farms, and communities. According to a recent study that looked into the mining impacts of Codelco and Glencore on the the Olivares Alpha Glacier (OAG), “the impact of mining in OAG could be responsible for 82% of its total retreat between 2004 and 2014, and only the remaining 18% would correspond to the impact of climate change.” The mining industry has tried to evade this by arguing that climate change is the main and only culprit behind the melting and the retreat of the glaciers, evading any responsibility for environmental damage.

While it will be up to Chileans to vote this Sunday on whether or not to adopt this proposed constitution, the position of the Canadian diplomatic mission in Chile regarding mining in the glaciers is concerning. Canada’s Trade Commissioner has promoted events about mining and glaciers by a hydrologist known by mining affected-communities in Chile and Argentina for lobbying against legislation for glacier protection, and who worked as a consultant for Barrick Gold’s Pascua Lama project. This hydrologist appears to have endorsed the industry’s view that mining should not be blamed for the retreat of the glaciers. 

The fight to legislate the protection of glaciers and their water sources began around 20 years ago thanks to strong community resistance to the Pascua Lama project, after the project’s environmental impact assessment revealed that mining activities would remove the glaciers. Any continuous attempt by Canadian mining companies and the Canadian diplomatic mission to advance mining at all costs goes against the spirit of this draft eco-constitution, which upholds the longstanding demands by communities to ban mining in communities, glaciers, and other sensitive areas. 

Follow OLCA on Twitter for more information in the lead up to Sunday’s vote.