Court/Judicial body: Supreme Court of Chile
Date: 25 November 2009
Instrument(s) cited: International Labour Organization (ILO) Convention 169 Court of Appeal of Iquique and Santiago Civil Court of Santiago number 7 Resolution number 956 of the General Direction of Water Chilean Indigenous Peoples Act Chilean Water Code
Background: The indigenous Aymara and Atacama communities of Chusmiza and Usmagama in northern Chile challenged the right of Agua Mineral Chusmiza SAIC to bottle and sell water from a source under their ancestral lands. The complainants alleged that the defendant had illegally deprived them of their lands and water sources, and that their rights set out in International Labour Organization (ILO) Convention 169 (Indigenous and Tribal Peoples Convention) had been violated. The defendant argued that the water for which it had registered property rights was not within the territories of the complainants and therefore not protected by the Chilean Indigenous Peoples Act (Ley Indígena) which grants special protection to indigenous communities’ water resources. The defendant maintained that the communities’ access to water existed only because it let them use the water. The court of first instance ruled in favour of the complainants in August 2006. The court based its decision on the Chilean Water Code and the Chilean Indigenous Peoples Act and ruled that the complainants have a legally recognised right to water arising from their ancestral use of the land and water sources, notwithstanding the defendant’s formal land ownership. The court awarded a flow of nine litres per second to the complainants, and one litre per second to the defendant. In April 2008, the defendant appealed this decision. The Appeals Court upheld the lower court ruling and stressed in its finding that the complainants had used the water source since time immemorial. In the present case, the defendant appealed to the Chilean Supreme Court. Its arguments relied on its private licence to extract water, and on its ownership of the land from which the water was being extracted. The complainants again relied on the Indigenous Peoples Act, as well as on ILO Convention 169.
Issue and resolution: Land and water rights of indigenous peoples. The Supreme Court decided in favour of the complainants, affirming their ancestral water rights and granting them a right to part of the flow of the water in question.
Court reasoning: The Supreme Court accepted the rights of the complainants, under the Indigenous Peoples Act, and the defendant, under the Water Code, on the basis that the complainants’ rights to exploit the water preceded the rights later granted to the defendant. The Supreme Court recognised the application of the ILO Convention 169 for the first time since its ratification by Chile in September 2008, and adopted a wide interpretation of the concept of community land, overcoming the fact that the complainants’ claim related to water sourced on property legally owned by the defendant. The Supreme Court confirmed that Chilean law recognises the ancestral water rights of the Aymara and Atacama communities over the water, and clarified the ability of the indigenous communities to register their water rights.
Notes: The Observatory Rights of Indigenous Peoples published a report on the case in 2010: http://www.monitoreandoderechos.cl/sites/default/files/biblioteca/DENUNCIA_CHUSMIZA_USMAGAMA.pdf
Link to full judgement: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwj7x5T2nprMAhWJYpoKHZPKCgAQFggmMAA&url=http%3A%2F%2Fwww.cooperativa.cl%2Fnoticias%2Fsite%2Fartic%2F20091126%2Fasocfile%2F20091126123046%2Fchuzmiza_suprema.doc&usg=AFQjCNEuSIt9DE6unrDRfI_p0EXoMOg5dg