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Chile again rejects Constitution rewrite; experts say no big loss for environment

Fishing boats in Seno de Última Esperanza (Last Hope Sound), in southern Chile. Image by Robert Nunn via Flickr.

Fishing boats in Seno de Última Esperanza (Last Hope Sound), in southern Chile. Image by Robert Nunn via Flickr.

  • On Dec. 17, 55% of Chilean voters rejected a proposal to reform the country’s Constitution, which dates back to the Augusto Pinochet regime; it was the second attempt, after a different proposal failed to get approval in September 2022.
  • The latest proposed text, drafted mainly by conservatives, did not make significant progress on environmental and climate change topics, experts say.
  • The 2022 draft included an entire chapter on the environment and made provisions on nature’s rights, while expanding protections against extractive industries. But concerns regarding the nationalization of water resources contributed to the “no” vote.

On Dec. 17, Chile said no to a proposal to change the country’s Constitution, with 55% of voters rejecting a second try at reforming the country’s fundamental law. The first attempt was rejected in September 2022 by a 62% majority.

The drive to rewrite the Constitution arose in 2019, as a political response to civil society protests that shook Chile for months, as people demanded an end to inequality, expensive health care and education, low pensions and a neoliberal system that seemed to benefit only the wealthy. The protests even led to Chile withdrawing last minute from hosting COP25.

Chile’s current fundamental law dates back to 1980 and the dictatorship of Augusto Pinochet and has been blamed for paving the way for privatizations, a booming business sector, and an economy focused on extraction and exploitation of Chile’s numerous minerals, while minimizing social rights and the role of the state.

A puma in Torres del Paine National Park, Chile. Image by Cristian Sepúlveda.

Eighty percent of voters voted for an end to this Constitution during an initial referendum in 2020, and a predominantly progressive body began writing a new proposal in 2021. The result was a draft that favored the environment, promised higher climate action ambitions and stronger recognition of Indigenous peoples’ rights. In an entire chapter focused on nature and environment, the proposal acknowledged the rights of nature, the obligation of repairing environmental damage and the state’s obligation to prevent, adapt to and mitigate the risks, vulnerabilities and effects of the climate and ecological crisis.

It also prohibited mining in protected and glacial areas and guaranteed the protection of its Antarctic coastal and marine ecosystems. Indigenous peoples, who make up about 13% of Chile’s population, were guaranteed rights to their lands, territories and resources and were assigned permanent representation in government bodies. One contentious point was a provision to make water a “non-appropriable” good that would have countered Chile’s National Water Code, which has privatized the country’s water supply.

Development as part of environmental protection

 The leftist government’s second attempt at a new Constitution significantly toned down environmental ambitions, experts told Mongabay.  This time, in a new nomination of candidates, Chile opted for a majority of conservative representatives, who worked with a pre-draft prepared by experts, to avoid changes deemed too radical. The result was, according to experts, as conservative as the majority of the council.

According to Ezio Costa, director of the environmental law NGO FIMA, there was little that addressed environmental protection and even less about climate change. “I’d say that, with respect to environmental norms and particularly climate-related norms, the people who controlled the Constitutional Council, people from the right and especially from the extreme right, would have preferred not to mention them at all,” he told Mongabay.

Costa also discussed the process of writing the latest proposal. In contributing to the latest draft, a constitutional committee on the environment rejected a proposal for the protection of marine environment, biodiversity, glaciers and the natural landscape. Another proposal, holding the state responsible for addressing climate change, also initially failed to make it. Only a day before the document was submitted, the phrase “climate change” was added.

Costa told Mongabay he was content that at least this mention had been accepted. “But if we look at the rest of the text … in environmental matters it is a step backwards, and therefore in climate matters, it would also be a step backward. We would have more possibility of affecting ecosystems, less possibility of protecting the life and health of people,” he said.

Salto Grande Waterfall in Torre del Paine National Park. Image by Chris Ford via Flickr.

Chapter 16 of the draft put together general statements regarding the environment, sustainability and development. But the latter term was the problem, Costa said. “It says that we have the right to a pollution-free environment, as long as it is compatible with development. And with development seen as it is in the council, we are not talking integral development or a development that looks at different variables, but basically just simple economic growth,” Costa said. “This would allow for a judge, if there is a violation of the right to live in an environment free of pollution but also [if there is] an economic gain from the violation, to allow the violation to continue occurring.”

The two rejections of the constitutional proposals are “a missed opportunity,” Costa said. “Because one of the main demands of the people has to do with environmental protection. Environmental reforms will now have to come from the legal side. I hope that in a short time, we will be able to discuss the incorporation of an environmental chapter to the current Constitution.”

Chile has been facing several environmental challenges. For more than a decade, the country has been affected by an ongoing drought, which has increased water scarcity and vulnerability to forest fires.

For Carolina Navarrete Rubio, member of the conservative Independent Democratic Union, the problem wasn’t the omission of climate change from the draft. “For me, there is no longer climate change; that is, the climate has already totally changed. We already live in that new reality,” she told Mongabay in an interview. Whether a term is mentioned at all in the proposal should not matter, she said. “Nowadays, people believe that if something is not mentioned or not stated in the Constitution, it is something that will never be dealt with in our country. And that is something totally false. That is why there are laws and regulations.”

Indigenous rights scaled down

Navarrete Rubio told Mongabay that the draft was a complete one that Chile could have used for years to come. The outcome, she said, showed the polarization in Chile. “What should happen now, in relation to the constitutional process, is to stop talking for at least 10 years about completely reforming the Constitution. Our social problems are not fixed overnight with a new Constitution,” she said.

According to Navarrete Rubio, with their text, they didn’t manage to convince the people to vote yes. The same happened at the first attempt, she said, mainly because of the first draft’s extensive coverage of Indigenous rights. “The problem was that they wanted to be recognized as a nation, distinct from the Chilean nation. That is to say, the plurinationality, that established that each original people or Indigenous people had their own sovereignty. That doesn’t work within Chile.” According to Chilean investigative outlet CIPER, the rights granted to Indigenous peoples were one of the main reasons for people to reject the first proposal in 2022.

A bridge crosses the dry bed of Chile’s Copiapó River.
A bridge crosses the dry bed of Chile’s Copiapó River. Since 2004, several stretches of river have ceased flowing completely. Critics of the water commodities market emphasize that the disappearance of the river wasn’t due to climate change-caused drought but because of “water sequestration” carried out by agro-industries and mining companies. Image courtesy of Seba Flores.

The second constitutional proposal mentioned Indigenous peoples several times, although to a lesser extent. Although Fernando Pairican, anthropologist at the Chilean Pontifical Catholic University, said the mere mention of Indigenous people was progress, he said other ways must be sought by Indigenous peoples to strengthen and expand their rights in Chile. “We need to create a broad Indigenous political movement, one that starts doing more serious political work in the urban sectors and in rural society. One that generates an alliance between Native people. If we do not take that step, we will never break the colonial order established since the early times of the Chilean Republic.”

Pairican, himself of Indigenous Mapuche descent, said that despite the two rejections, reforming the country through a new Constitution is “a pending issue, as the spirit of the Constitution is the spirit of the dictatorship. We need to wait for a new opportunity to reform. And in the meantime, we need to seek our way through Parliament to restore our rights.”

Banner image: Fishing boats in Seno de Última Esperanza (Last Hope Sound), in southern Chile. Image by Robert Nunn via Flickr.

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