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With 178 pages, 388 articles and 57 transitory norms, Chile could make history with a Constitution that defines the State as “ecological”. The text, for which Chileans will vote in a referendum on September 4, is the framework to shape the new country that the citizens who took to the streets during the social outbreak of October 2019 and also those who voted mostly to replace the Magna Carta in force, from 1980 and legacy of the military dictatorship of Augusto Pinochet. However, according to polls, that enthusiasm for change does not appear to have translated into strong support for the constituents’ proposal.
The new constitutional text proposes a representative democracy, with a parity perspective, the guarantee of social rights and with a strong environmental approach, pioneering in the region, and that would mark a great difference with the previous Constitution. While in the current one, only one of the 15 chapters names ecosystems, in the current project eight of the eleven sections mention it directly or indirectly. In total, there are 98 articles that refer to the climate emergency and the tools to mitigate it, ranging from promoting environmental education to water management or the development of scientific research that promotes ecosystem balance.
The transversality and depth of these articles are what have convinced most of the environmental movement, inside and outside the South American country, to defend the constitutional proposal. “The inclusive elaboration process that sought new responses to the climate crisis in which we live marks a path that inspires the world,” said Patricia Madrigal, former deputy minister of the environment of Costa Rica. For his part, the academic from the University of Vienna, Ulrich Brand, commented that this constitutional project is “a valuable toolbox to change the economic model to a post-extractivist and post-developmental one.”
These days, the Constitution is on everyone’s lips. Whether to praise or criticize her, the debate is in the homes of all Chileans and in the streets. “That is already a huge step forward. It is a before and after about what we understand by democracy, ”explains Estefanía Gómez, campaign coordinator for Greenpeace in Chile, by phone. Ezio Costa, professor at the University of Chile and executive director of the NGO FIMA, is optimistic: “I think that society understood that the time is now.” For her part, Yarela Gómez Sánchez, former conventional constituent for the Aysén region, adds: “It is the starting point to start doing things right.” Among the almost one hundred articles linked to environmentalism, these are the six key points, according to academics and environmental organizations:
Chile as an “ecological state”
If approved, it would be the first Constitution in the world that recognizes the climate crisis and points to the Government as responsible for mitigation measures. It names it from the first article and in article 128 it is even more explicit: “It is the duty of the State to adopt actions to prevent, adapt and mitigate the risks, vulnerabilities and effects caused by the climate and ecological crisis.” For Ezio Costa, this point is not anecdotal: “What this new norm does is to understand that people’s activities are not only integrated into natural cycles, but also do not destroy them. It’s something unprecedented.” In addition, experts agree that by determining itself as an “ecological state”, the door is being opened to a conversation “without haste” and focused on “the planet of the next generations”.
Recognition of the rights of nature
The word “nature” appears 36 times in the text. Article 18 is quite clear as to who are the subjects of rights: “Natural persons, indigenous peoples and nations, and nature.” This implies the right to exist, to maintain the functioning of its vital cycles and to be restored.
For Juan José Martin, former constituent for District 12 and coordinator of the Environment and Economic Model Commission, this is one of the most revolutionary points. “It is a substantive legal change. It is no longer only approached from environmental human rights, that is, insofar as it serves the human being, but it defends itself. This is the most robust measure to protect it,” he explains. In addition, animals are considered “subjects of special protection”, alluding to their sentience and their right to a life free of abuse.
Water will be a human right and will no longer be a private resource
Chile is the only country in the world that constitutionally recognizes the private right to water. This has made it difficult to implement effective solutions to the water crisis that keeps a million Chileans without this resource. Management, currently in the hands of 40 organizations, is the country’s Achilles heel.
In the proposed new constitution, water would no longer be the property of a few, but rather is seen as a natural common good “inappropriate in all its states” of which a “reasonable use” must also be made. He also emphasizes that the duty of the State is to protect it. Therefore, “glaciers, protected areas, those established by law for reasons of hydrographic protection and others that it declares are excluded from all mining activities.” “We cannot find the answer to end the water crisis in the rain, it has to come from the management of the resource,” says Gómez, from Greenpeace. This paradigm shift does not mean the end of water use. The State may grant administrative permits for the use of these assets. What were previously water use rights would become “authorizations”.
More citizen participation mechanisms
Another strong point is that of environmental democracy, which is based on access to information, participation and environmental justice for citizens. In the event of a ‘yes’ vote, citizens could now organize themselves to propose a bill to Congress, something unprecedented until now. For processing, it would be necessary for a group equivalent to 3% of those eligible to vote to present the initiative. “This decentralizes power”, explains Costa, “and also means that society has much more to say and do. It will be easier to take sides in solving environmental problems”. “It is understanding society as an active part of the solutions”, insists Yarela Gómez.
Individuals and peoples, “inseparable group” of nature
Not only are indigenous peoples recognized as having the right to their territories and resources, but it is proposed to shield these lands with “special protection.” The legal instruments for its “cadastre, regularization, demarcation, titling, repair and restitution” are also the responsibility of the Public Administration.
Alihuen Antileo Navarrete, president of the Mapuche Political Platform association and coordinator of the committee for the Approval of his community, celebrates the fact that “at last” indigenous peoples are included (representing 13% of Chileans; 11% of them Mapuches). in the Magna Carta. “It is as if we began to exist constitutionally speaking.” “For us, the fact that good living is enshrined as a principle represents an important achievement. This gives a meaning and objective to the activity of the State and to the different economic agents”. In the new writing, 55 articles contemplate the rights of these native peoples, great defenders of biodiversity and ecosystems.
The creation of environmental defense organizations
The text contemplates the creation of the National Water Agency, in charge of ensuring compliance with the National Water Policy, or the Ombudsman for Nature, which will act as a supervisory element for the Government and private entities in environmental matters. These new bodies would materialize the entire strategy for mitigating the effects of climate change and protecting biodiversity. Environmental courts would also be multiplied (today there are only three in the entire country) and basin councils would be set up, with more space for conversation and decision by the communities linked to each of these water sources.
“By separating water management from the political cycle and talking about autonomous constitutional bodies, conservation is focused from a more technical point of view, with more science and data behind it. It is a huge turnaround”, explains Juan José Martin. “If this goes ahead”, reveals the representative of Greenpeace, “there will be a great task in the implementation. We know that many legal reforms will be necessary. It’s not going to be an overnight change, but this is a framework that allows us to move forward. To be closer to the country we want”.
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