A Pivotal Moment for Energy Community Cooperation in Chile

Abstract

Chile is undergoing the energy transition similar to many countries. However, there are key problems and in particular in the context of recognition and restorative justice. There are issues in relation to the Mapuche indigenous communities and their land in the context of clean energy development. Foreign investors need to realize the true cost of such investment which needs to be more ‘just.’ Reform in law and even potentially in the constitution would support the indigenous communities and ensure that development happens with energy justice at its core.

1 Introduction

Throughout much of the twentieth century, energy policy failures were ubiquitous in Chile.¹ Indigenous groups have long been denied recognition and just outcomes were not delivered across the energy life cycle.² Even as Chile’s democracy reawakened in 1990, multi-national corporations usurped indigenous land and resources without the meaningful consent of affected groups.³ Multi-national mining companies easily obtained mining permits or concessions on Chilean land.⁴ The construction of hydroelectric dams along the Bio-Bio River disrupted and flooded Mapuche ancestral lands.⁵ All the while, the richest 20 percent in Chile earn ten times more than the country’s poorest 20 percent.⁶ Lacking recognitional and restorative justice, Mapuche’s ancestral ties to the land continue to go unrecognized and their harms unrestored.⁷

Finally, after a rise in subway fares, and a number of other economic issues driven by Chile’s broader economic model, many Chileans took to the streets.⁸ Protests and unrest came to a head in 2019 leading to the current redrafting of the constitution.⁹ Violence and arson in the 2019 protests lead to a military deployment, where 1000 people were injured and 20 dead.¹⁰ Months of instability ensued, until formal efforts to craft a constitution were made.¹¹ President Sebastian Pinera agreed to hold a referendum, wherein the people voted overwhelmingly to draft a new constitution, and to have a body elected by popular vote draft the document.¹²

Chile elected 155 delegates to a Constitutional Convention tasked to draft a new constitution for the country with social equity and inclusion in mind.¹³ Of the 155 seats, 17 were expressly reserved for indigenous groups.¹⁴ A key feature of the rejected constitution involved a guarantee that Chile’s land, water, and air resources would be protected and accessible to the people.¹⁵ The Mapuche’s long-standing resistance to the Chilean state flared even more violent toward mining and logging crews as the country contemplated the draft.¹⁶ In the end, the new, progressive proposal was rejected by 68 percent of the voters.¹⁷

Chile finds itself at a crossroads, hungry for a more equitable future, and the Mapuche still without formal recognition.¹⁸ Comes now the just transition framework to achieve recognition and restorative justice in Chile.¹⁹ Despite the harm of energy development in Chile, so often shouldered by indigenous groups, Chile has the opportunity to include diverse Mapuche opinions on an even playing field and make right the past wrongs.²⁰

2 Chile is Ripe for Change

The failed constitutional convention last year comes after decades of failed energy policy in the Bio-Bio region.²¹ The Mapuche insist ‘water for us is the veins of Mother Earth. We cannot cut our body’s veins just like we cannot cut or intervene in the veins of Mother Earth to build hydroelectric plants.’²² And yet, the threats of climate change are more pervasive than ever.²³ The need for efficient and reliable low-carbon energy sources, like hydropower, is mounting, and Chile is ripe for a change that will offer a balance and just way forward.²⁴

Energy justice provides a way to transform and improve clean energy development in the Bio-Bio region. Recognitional justice forges a path to include the Mapuche in the development of renewable energy and possibly even integrate indigenous wisdom into the energy life cycle.²⁵ Likewise, restorative justice could engender goodwill between the Mapuche and developers, encouraging more cooperative clean energy for year to come.²⁶

To start, a new constitution infused with energy justice principles could facilitate historic cooperation between indigenous groups and foreign investors. Here, Chile has an opportunity to implement just, unambiguous procedures to facilitate the cooperation of indigenous groups, the Chilean government, and foreign investors.²⁷ And, by weaving in principles of recognitional and restorative justice, Chile’s second attempt to move a new constitution forward could garner more support from indigenous communities.²⁸ A new, collaborative modus operandi can and must be established between the Mapuche, the Chilean government, and clean energy developers to promote environmental justice for all people and a sustainable future for the world.

3 Challenges in Defining Indigenous Ancestral Lands within Chile

A critical first step in pursuing recognitional and restorative justice, however, involves overcoming challenges to define Mapuche ancestral land. Put simply, recognition justice ensures that no one is left behind and that the rights of affected groups are not ignored as energy developers blaze forward toward ever-increasing profits.²⁹ Once a group has been left behind, another aspect of energy justice comes into focus: restorative justice.³⁰ This involves rectifying harms done and taking preventative action to mitigate future harms.³¹ To recognize an indigenous right to land in Chile and restore land losses, however, the bounds of that land must be known.

As we have seen throughout the twentieth century, the Mapuche’s legal relationship to their ancestral land changed in tandem with political regimes.³² In 1972, the Chilean people elected Salvador Allende from the Popular Unity party.³³ Allende overturned the expropriation of the Mapuche lands and restored much of the Mapuche’s ancestral land to the tribes.³⁴ Almost immediately after the Chilean government reestablished Mapuche possession of their lands, though, Augusto Pinochet led a violent coup that overtook the government.³⁵ Once in power, Pinochet divided the Mapuche’s communal ‘reducciones,’ which means ‘reductions’ in English, into individual plots of land that would be reappropriated to wealthy Chilean farmers.³⁶

While some law exists to provide recourse for the dispossessed Mapuche, recognitional justice is necessary to articulate a clear legal standing for the Mapuche to lay claim to their ancestral land.³⁷ Passed in 1993, the Indigenous Peoples Law established protections for indigenous land and water.³⁸ While this law provided an institutional and legal framework for indigenous groups to assert their rights, it came with limitations to Mapuche self-determination and required the consent of each family prior to transferring their land rights, as well as approval from the Comision Nacional de Desarrollo Indigena.³⁹

Aligned with the energy justice framework, the International Labour Organization (ILO) Convention 169 provided a basis to include indigenous people in the management, use, and conservation of their land’s natural resources.⁴⁰ Still, these laws are insufficient to resolve disputes regarding indigenous sovereignty, land claims, and disputes surrounding natural resource development in disputed lands.⁴¹ In at least one hydroelectric dispute, the Court of Appeal of Temuco and the Supreme Court of Chile found the government liable for beaching the Mapuche right to consultation.⁴² But, other disputes surrounding Mapuche land claims have yielded different results in the courts.⁴³ Therefore, there is no established legal precedence to determine what claim, if any, the Mapuche have over their ancestral lands.⁴⁴ Year in and year out, the Mapuche raise their voices in protest of the disturbance of their land.⁴⁵ Those voices muted by the lack of recognitional and restorative justice in Chile.

4 Conclusion

Despite challenges in defining Mapuche land, just outcomes for clean energy development in Chile are possible within an energy justice framework, and specifically by pursuing recognitional and restorative justice. To meet global decarbonization goals, new investment in hydropower, wind, and solar will require the use of indigenous ancestral land.⁴⁶ Thus, there is no better time to heed the energy justice call for fairness, inclusion, restitution, and acknowledgment of rights in the global transition to a low-carbon economy.⁴⁷ To start, foreign investors should consider the true cost of developing indigenous ancestral land and adequately compensate the Mapuche for their losses.⁴⁸ Next, consent and mutual respect must feature as common practice for clean energy developers.⁴⁹ And finally, Chile’s next constitutional convention would be wise to incorporate principles of energy justice principles in its next draft to the benefit of all.