Propuesta Constitucional

22. Environment

  • The Proposal for a new Constitution recognizes Nature as a holder of constitutional rights.
  • Any person or group may file a protection action if the legitimate exercise of Nature’s constitutional rights was deprived, threatened or disturbed by an act or omission (without requiring that these acts or omissions be illegal).
  • It establishes a list of environmental principles and constitutional rights, and also grants relevant powers for the protection of Nature and the environment to new territorial entities.

Nature as a new constitutional rights holder

The Proposal or draft for a new Constitution establishes the recognition of Nature’s rights – turning it into a new holder of constitutional rights – providing that Nature “has the right to have its existence, regeneration, maintenance and restoration of its functions and dynamic equilibrium, which include natural cycles, ecosystems and biodiversity, respected and protected. It is important to note that this Proposal, despite recognizing nature as a subject of rights, does not define what is understood by “Nature”.

It also expressly provides that the State “must guarantee and promote the rights of Nature as determined by the Constitution and the Laws” and that “the Law may establish restrictions on the exercise of certain rights or freedoms to protect the environment and Nature“.

It also provides that the State and the society have the duty to protect and respect the rights of Nature, and that the State must adopt an ecologically responsible administration and promote environmental and scientific education.

The Nature Ombudsman’s Office (“Defensoría de la Naturaleza”) is created as an autonomous agency, with its own personality and assets, which “will have the purpose of promoting and protecting the rights of nature and environmental rights guaranteed in this Constitution and in the international environmental treaties ratified by Chile, against acts or omissions of the State administration bodies and private entities“. This Nature Ombudsman’s Office is expressly empowered to “file constitutional and legal actions when environmental and nature rights are violated“.

It also establishes the recognition of the right of all persons to a responsible access to Nature, in the following terms: “the right of responsible and universal access to mountains, riverbanks, sea, beaches, lakes, lagoons and wetlands, among others defined by law, is recognized for all persons“. It also states that a law will regulate the exercise of this right, the obligations of adjacent owners and the liability regime, among other elements.

Constitutionalisation of environmental principles

The draft establishes the following minimum principles for the protection of Nature and the environment:

  • Progressivity
  • Precautionary
  • Preventive
  • Environmental Justice
  • Intergenerational solidarity
  • Responsibility
  • Fair climate action

In addition, the draft establishes the “principle of good living“, which has no precedent in the Chilean legal system, and which is proposed as a relationship of harmonious balance: “the State recognizes and promotes a relationship of harmonious balance between people, nature and the organization of society“.

Regarding environmental damage, the principle of environmental responsibility is included, which implies that whoever damages the environment must repair it, without prejudice to the corresponding sanctions according to the Constitution and the law. Although this principle was already recognized at a statutory level, it would now be expressly incorporated into the Constitution. The Proposal also specifies that whoever carries out the mining activity must allocate resources to repair the damage caused, the environmental liabilities and mitigate its harmful effects in the territories where it is developed, according to the law.

Constitutional environmental guarantees

The Proposal provides that all persons have the right:

  • To a healthy and ecologically balanced environment (the State must guarantee this right).
  • To clean air throughout its life cycle (in a manner to be determined by law).

In addition, the constitutional proposal establishes “environmental democracy” which includes: (i) the right to informed participation in environmental matters (the law will determine the mechanisms of participation), and (ii) the right to access environmental information in the possession or custody of the State. It is also established that private parties must provide environmental information on their activities under the terms established by law.

With respect to water, the draft states that water is essential for life and the exercise of human rights and Nature, and that the exercise of the human right to water, sanitation and the balance of ecosystems will always prevail (with other uses being determined by law).

Regarding the role of the State in environmental matters, the draft establishes a series of duties:

Ensuring access to environmental justice Ensure environmental education. Protecting the ecological and social function of land
Adopt actions for prevention, adaptation and mitigation of risks, vulnerabilities and effects caused by the climate and ecological crisis. Protect biodiversity, preserving, conserving and restoring the habitat of wild native species, in such quantity and distribution that adequately sustains the viability of their populations and ensures the conditions for their survival and non-extinction. Guarantee and promote the rights of Nature as determined by the Constitution and laws.
Protect waters, in all their states and phases, and their hydrological cycle. Ensure the integrity of wetland ecosystems, native forests and soils, ensuring their functions, processes and water connectivity. Guarantee the preservation, restoration and conservation of natural spaces through a national system of protected areas.
Ensure the reasonable use of water Establish a permanent policy of sustainable and harmonious development with nature. To regulate and promote the management, reduction and recovery of waste in the manner determined by law.
Protect animals, recognizing their sentience and the right to live a life free of mistreatment. Promote education based on empathy and respect for animals. Establish a policy for the mining activity and its productive chain that must consider, at least, environmental and social protection.
Permanently monitor environmental and health risks that affect the health of the country’s communities and ecosystems. Establish a Ports National Policy that is organized around the principles of efficiency in the use of the coastline; the principle of environmental responsibility. Promote dialogue, cooperation and international solidarity to adapt to, mitigate and cope with the climate and ecological crisis and protect Nature

Popular and general protection action

The draft includes a protection action for the defence of constitutional rights which, in the case of the rights of Nature and environmental rights, (1) may be filed by any person or group, or by the Nature Ombudsman’s Office, and (2) will be decided by the environmental courts (establishing that there will be at least one environmental court in each region of the country). Currently there are only three environmental courts in Chile, one for the northern, one for the central and one for the southern part of the country.

It is provided that this action may be exercised if, due to an act or omission, Nature and/or persons suffer a threat, disturbance or deprivation in the legitimate exercise of their constitutional rights. It should be noted that the draft text does not require that the act or omission be arbitrary or illegal as does the current “remedy of protection” regulated in article 19 N° 20 of the Constitution currently in force.

Jurisdiction of regional and local authorities

The draft creates autonomous institutions, with legal existence and their own assets, that will have relevant powers for the protection of Nature and the environment and for the development of projects:

  • Regional Assemblies: they may intervene in environmental assessment procedures (in conjunction with the other competent bodies).
  • Autonomous Region: it will have specific competences in respect of:
    • The conservation, preservation, protection and restoration of nature, ecological balance and the rational use of water and other natural elements of its territory.
    • Approve environmental decontamination plans (through citizen participation processes).
    • Land-use planning and integrated watershed management.
    • Establish a permanent policy of sustainable and harmonious development with nature.
  • Autonomous Commune: it will have competences in respect of:
    • The exercise of actions to protect Nature and its rights recognized by the Constitution and the law.
    • The sustainable and integral development of the commune.
    • Protect communal ecosystems and the rights of Nature.
    • Execute the mechanisms and actions of environmental protection in the manner determined by the Constitution, the law, the instruments of environmental management and related regulations.

Differences with the current Constitution

The current Constitution does not recognize the rights of Nature but assures “all people” the right to live in an environment free of pollution and considers the duty of the State to ensure that this right is not affected and to protect the preservation of nature. The draft of the proposed new Constitution expands the list of duties of the State and provides that the law can establish restrictions to the exercise of other constitutional rights not only to protect the environment (as does article 19 N°24 second paragraph of the current Constitution), but also to protect Nature.

On the other hand, the protection action of the rights of Nature and the environment is broader than the current “Constitutional Protection Action” (“Recurso de Protección“) established in the current Constitution, not only in relation to who will be the persons who can file it (the Nature Ombudsman’s Office, any person or group) but also that it is not required that the act or omission that threatens, disturbs or deprives the legitimate exercise of environmental or Nature rights be illegal or arbitrary.

Finally, it is important to note that the constitutionalisation of the environmental principles described, which will become obligatory for all, in attention to the principle of constitutional supremacy (also included in the draft), will influence the actions of State bodies and individuals. Certainly, these principles will be invoked by the people, groups or institutions that exercise the protection action of environmental or Nature rights in the environmental courts.

Contacts

Gonzalo Jiménez gjimenez@cariola.cl
Martín Astorga mastorga@cariola.cl
Verónica Cuadra vcuadra@cariola.cl
Florencio Bernales fbernales@cariola.cl
Lorena Avendaño lavendano@cariola.cl
35. Protección de la libertad de expresión y libertad de prensa
20. The constitutional status of minerals

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