Court Of Appeals In Valdivia Decides Case In Favor Of Mapuche Communities In Lanco (indigenouspeoplesissues.com)
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Last week another case came down upholding indigenous rights as recognized in interntional law, this time form the Court of Appeals in Valdivia. At issue in this case was the administrative approval of a solid waste transfer station project located in the commune of Lanco.
Just over a year ago, in July of 2009, the Municipality of Lanco submitted the waste transfer station project for approval to the Sistema de Evalución de Impacto Ambiental (Environmental Impact Assessment System) for the Los Ríos Region. The Comisión Nacional del Medio Ambiente (National Environmental Commission) designated the project as requiring only an Environmental Impact Delcaration instead of a full Environmental Impact Study and the Regional Environmental Commission subsequently approved the project unanimously. As part of the approval proceses, details concerning the project were made public in the Diario Oficial, and the Municipality of Lanco submitted a series of anthropological reports concerning the possible effects on nearby indigenous communities.
The complainant Mapuche community, Puquiñe, alleged that the resolution approving the project was illegal and arbitrary for not considering the potential effects on neighboring indigenous communities in violation of national legislation, the Constitution, and international law. Specifically, the community argued that the project should have been submitted to a full Environmental Impact Study, as required by national law in cases where a project may alter ecosystems or customs of human groups. The community also alleged that their right to consultation and participation, as recognized in ILO Convention 169 had been violated. Finally, the community claimed that their constitutional rights to life and to live in an environment free of contamination had been violated.
The respondent, the Comisión Regional del Medio Ambiente (Regional Environmental Commission), argued that the Mapuche community had not submitted sufficient evidence to indicate how and to what extent the proposed project affected their lives and livelihoods. With regards to the obligation to consult with the Mapuche communities, the Commission asserted that the approval of the project constituted an administrative act rather then an administrative measure and thus the provisions of ILO 169 dealing with consultation were not binding.
In its decision, the Court decided in favor of the Mapuche community on all issues except the constitutional right to equality before the law. The Court specifically cited the rights to consultation and participation as advanced in ILO Convention 169. In finding that the community had offered sufficient evidence to demonstrate the potential effects on their lives, the Court highlighted the special connection between indigenous peoples and lands, citing as well the United Nations Declaration on the Rights of Indigenous Peoples.