Chile: Indigenous peoples and the sale of water resources

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Publication Title

Chile: Indigenous peoples and the sale of water resources

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Domingo A. Lovera Parmo, University of Diego Portales, Santiago, Chile

Publication Date

27 Nov 2008

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Abstract

Privatisation of water resources is a rare but emerging trend in a number of countries. In Chile, decades old property laws pose a hard limit on governmental initiatives. Based primarily on free trade, Chile’s water adjudication laws and regulations provide that water, though legally qualified as public use good, in its natural state is a regular commodity: one can transfer it, and sell it. The result is a constraint on proposals for the government to redress historical injustices of indigenous peoples who have been principally affected by the law. Over the past few centuries their lands, resources and culture has come under systematic attack from colonisers and the State. It remains one of the few Latin American countries that has not constitutionally recognised indigenous peoples and a recent Constitutional Court decision considered that participatory rights contemplated in ILO Convention No 169 were mere governmental guidelines—but rights. This may explain both, the conflict developing in southern Chile where water has been conceived in recent public policies concerning indigenous peoples as a means to allow them to exploit their lands, instead of a matter of historic justice.

The first section of this paper will briefly illustrate the situation of indigenous peoples in Chile. I shall argue that their undermined social and political position in current Chile is no other than the result of years of discrimination and inattention to their specifics demands—beginning with a radical genocide during the colony, extended throughout the republic’s early years. The second section will be devoted to analyze Chile’s water law, paying particular attention to its free trade innovations as passed in 1981. As it has been suggested, Chile’s water law conceives water as a commodity, a decision made aiming at favouring its use for hydroelectric purposes. This specific use behind the water rights institutional scheme may explain why other uses, such as environmental, recreational or those indigenous peoples conceive for water, are left unconsidered—and since 2005 amendments, taxed. A third section will contend the model’s neutrality, then examining a specific (an actual) case to show the kind of conflicts this regulation provokes, showing how indigenous groups and civil society have responded to the law with various advocacy and legal strategies and provide assessment of lessons for other contexts. This section will show the impact of having a weak governmental agency operating under a free trade scheme: water conflicts between indigenous peoples and private investors are left to be resolved by private means (i.e. buying the dissidence). In the same section I will contend that lack of participation may be one of the main reasons to explain indigenous people’s undermined position within these conflicts, leaving to the end some final remarks concerning recently passed policies on indigenous lands and waters.

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