1. INTRODUCTION
In Chile, as in many parts of the world, water resources are under growing pressure. Chile has highly variable water conditions, from very arid areas in the north to the well-watered south.Footnote 1 As a long, thin country bordered by the Cordillera de Los Andes on one side and the Pacific Ocean on the other, Chile is a country of rivers. More than 1,251 rivers located in 101 basinsFootnote 2 run the length of Chile, supplying water for (often competing) social, cultural, economic, and environmental uses. In some areas, such as the north of Chile, water is scarce and may be over-allocated. In other areas at the centre of the country, rivers are modified from their natural state and may be contaminated by pollution.Footnote 3 Overall, water quality has improved in recent years in Chile because of advances in wastewater treatment,Footnote 4 although Chilean water resources continue to experience elevated salinity, metal concentrations, and high levels of nitrates.Footnote 5 In many parts of Chile, especially central and northern regions, there is strong economic demand for water for agriculture, urban and industry (mining and energy) purposes,Footnote 6 which compete with the social and environmental uses of rivers. However, in many instances in the south, water availability exceeds demand,Footnote 7 and some rivers remain free from major human intervention and damage.Footnote 8
Chile also has an important Indigenous heritage, with a number of distinct Indigenous peoples holding traditional connections and rights to land and water resources throughout the country,Footnote 9 regardless of whether or how these interests are recognized by governments. Indigenous conceptions of water resources are routinely described in the scholarship as being different from dominant or western approaches, which often frame resources in terms of property or use rights,Footnote 10 and this happens in Chile too. In the south of Chile, for example, Mapuche communities conceive of water resources as being connected to their ancestors, to metaphysical entities and to the total embodiment of nature.Footnote 11 These communities have a sacred connection with and respect for water. For other Indigenous groups in the north, such as the Aymara and Atacameño communities for whom water resources are a vital element of the agricultural economy, water plays an important role in Indigenous political organization and identity.Footnote 12
In line with international developmentsFootnote 13 there is growing concern that anthropogenic water extractions and overuse of freshwater resources have led to pollution and low or absent flow rates in Chile's rivers.Footnote 14 Several scholars/activists have expressed concern about the ongoing exclusion of Indigenous peoples from water access and governance, and the failure of Chilean law to reflect cultural rights, aspirations, and needs.Footnote 15 Chile's water crisis is playing out in the context of growing social and political movements against structural inequality.Footnote 16 It is exacerbated by the effects of climate change,Footnote 17 and the inability of regulatory frameworks and institutions to adapt quickly enough to manage water as a scarce and threatened resource.Footnote 18
In this article we examine the limited provision and implementation of environmental flows in Chilean law and policy, and consider the treatment of Indigenous water rights and interests in their planning. This examination draws on an in-depth analysis of Chilean legislation, case law, and legislative reform proposals and debates in the political, historical, and cultural contexts, most of which is yet to be published for an English-speaking audience.Footnote 19 In doing so we also draw on our combined experience as legal researchers and practitioners working in environmental law and Indigenous rights in Chile and Australasia, for Indigenous peoples, governments, and private interests.
We are concerned with the development and implementation of law and policy in context, and so we pay attention both to the written content of laws, judicial decisions, and law reform proposals and debates, identified through doctrinal legal research methods, and their contextualization in the interdisciplinary scholarship.Footnote 20 Public and academic debates around water, human rights and Indigenous rights are highly polarized in Chile,Footnote 21 and we have considered and reconciled a spectrum of scholarly and public opinion, although our analysis focuses on the actual laws, policies, and jurisprudence in force. During the writing of this article, Chile erupted into a state of social protest not seen since the time of the Pinochet dictatorship (1973–90). This has required and enabled us to consider the provision for environmental flows in the context of the unfolding social and constitutional crisis. As the Chilean legal and policy landscape is developing rapidly in response to this crisis, there is media coverage, but no academic commentary or analysis for many of the legal or policy proposals covered in this article.
Given Australia's present experience with environmental flows and more recent agitation and concern around Indigenous water rights, including the ‘cultural flows’ policy,Footnote 22 we make occasional reference to the Australian experience. However, we emphasize that the Australian experience must be treated carefully, in its own particular historical, political, and social contexts, as a model with its own challenges and flaws.Footnote 23 We do not advocate the adoption or ‘transplantation’Footnote 24 of the Australian approach in Chile, but maintain that reflecting on foreign experiences can help to identify and potentially reveal new responses to domestic concerns.Footnote 25
We argue that there is a need for a comprehensive minimum flow regime in Chile to protect environmental or ecological water qualities and take into account Indigenous rights and interests, which acknowledges the social as well as ecological functions of environmental flows. At a minimum, this regime must exempt users who leave river flows in-stream, including Indigenous peoples and environmentalists, from paying fines for ‘non-use’. This is not at the expense of substantive water rights for Indigenous peoples that may be used for consumptive, productive or economic purposes, but should be implemented alongside existing mechanisms that fund the recognition and allocation of water rights for Indigenous peoples.Footnote 26
We acknowledge that setting aside an adequate water allocation for environmental or cultural purposes in Chile will not be easy, and that transformative water reform has, until now, been impossible to secure.Footnote 27 In the context of finite water resources, safeguarding environmental flows and setting aside a flow of water for Indigenous use may be costly and politically unpalatable, potentially requiring the redirection of water away from consumptive, economic purposes. Yet, if the Chilean government is to ensure safe and reliable water resources for future generations, robust legal and policy frameworks that safeguard both environmental and cultural water uses will be crucial. The current constitutional crisis in Chile, the most significant political crisis since the end of the Pinochet dictatorship, highlights the need to strive towards more inclusive and equitable water governance and allocation.Footnote 28
2. A HOLISTIC APPROACH TO ENVIRONMENTAL FLOWS
The challenge of effective water regulation to ensure water availability and quality for present and future generations is not particular to Chile, but is a shared concern for the world community.Footnote 29 Despite global concern about the availability of clean and sufficient water into the future, there is no international treaty that addresses access to and conservation of freshwater.Footnote 30 There is growing international attention, however, to the right to water and the importance of water for ecosystem health, independently of human welfare concerns. The scholarship in this field posits a clear link between resource health and human culture and wellbeing, consistent with trends towards more holistic water management concepts like the ‘hydrosocial cycle’,Footnote 31 and with the broadening of scientific approaches, which now tend to conceive of natural resources as ‘socio-ecological systems’.Footnote 32
The need to protect water for human and ecosystem health is increasingly acknowledged in a number of international legal documents. The human right to water, first recognized by the United Nations in 2010,Footnote 33 is concerned primarily with ensuring access to water for drinking and sanitation.Footnote 34 There is a ‘remarkable gap’ between the growing global consensus to recognize access to water for basic domestic purposes as a human right, and legal frameworks that actually govern water access.Footnote 35 Moreover, there is a need to broaden the conceptualization of the human right to water to support the protection and safeguarding of water for a range of social, cultural, and environmental purposes. Failure to protect rivers from pollution or over-extraction, for example, has a direct impact on the realization of the human right to water. Arguably, therefore, the normative content of the right to water obliges states to ensure both water quality and quantity.Footnote 36 In this regard, the human right to water intersects with other developing areas of human rights and the environment in international law, including the right to a clean and healthy environmentFootnote 37 and the rights of Indigenous peoples over natural resources and territories.Footnote 38 International debates around human rights, the environment and water are also playing out in the emerging transnational take on environmental constitutionalism,Footnote 39 or ‘the constitutional incorporation of substantive and procedural environmental rights, responsibilities and remedies to protect the natural environment’,Footnote 40 especially in Latin America where some of the ‘most innovative and energetic’ approaches to environmental constitutionalism are developing.Footnote 41
International concern surrounding water and its numerous values and uses is reflected in the 2030 Agenda for Sustainable Development and its Sustainable Development Goals (SDGs), in particular SDG 6, which enjoins states to ‘[e]nsure availability and sustainable management of water and sanitation for all’.Footnote 42 The Organisation for Economic Cooperation and Development (OECD) has also been working on domestic prerequisites for sustainable water management, arguing that:
[w]ell-designed allocation regimes contribute to multiple policy objectives: economic efficiency, by allocating resources to higher value uses as well as contributing to innovation and investment in water use efficiency; environmental performance by securing adequate flows to support ecosystems services; and equity by sharing the risks of shortage among water users fairly.Footnote 43
The responses of governments to the pressures placed on the environmental qualities of rivers is sometimes to implement ‘environmental flow’ regimes in domestic regulatory frameworks for water.Footnote 44 Such regimes conceive of the environment as a legitimate ‘user’ of water,Footnote 45 including for ‘ecosystem services’,Footnote 46 defined by Arthington as ‘the tangible benefits people gain from ecosystems’.Footnote 47 ‘Environmental water’ is a broad term, used to encompass both legal rights for the environment as a consumptive user and mechanisms that impose conditions on other users (such as an extraction cap). The term ‘environmental flow’, on the other hand, typically contemplates minimum in-stream flows or reserves which do not form part of the consumptive pool of water allocated for extractive use.Footnote 48 The Brisbane Declaration and Global Action Agenda on Environmental Flows of 2018 provides the following revised definition of environmental flows:Footnote 49
Environmental flows describe the quantity, timing, and quality of freshwater flows and levels necessary to sustain aquatic ecosystems which, in turn, support human cultures, economies, sustainable livelihoods, and well-being.
The structure and method of providing for environmental flows differs from place to place, with a range of possible technical approaches for calculating and regulating the appropriate flow. Arthington summarizes the typical approach to setting environmental flows as follows:
The majority of ‘in-stream flow’ methods … either provide simple rules founded on the hydrologic characteristics of surface water flows, or they quantify the flow volumes needed to maintain aquatic habitat in terms of water depth, velocity, and cover for selected species, usually fish of commercial or recreational value (e.g., salmonids). Often the flow recommended to support habitat is a ‘minimum flow,’ the smallest amount of water that could maintain a wetted channel and provide opportunities for limited movement and maintenance feeding.Footnote 50
Despite the Brisbane Declaration's recognition that environmental flows support human cultures, economies and wellbeing, conceptual models underpinning environmental flows, until very recently, have largely been restricted to biophysical interactions, ‘eschewing socio-cultural complexity, local knowledge, and governance arrangements’.Footnote 51 Advocates of an expanded conception of environmental flows argue for recognition of local and Indigenous governance frameworks and interests to build legitimacy in environmental flow regimes and water planning more broadly.Footnote 52
Human relationships with water hold particular importance for Indigenous communities, who claim distinct relationships with water resources and the broader natural worldFootnote 53 and who are the repositories of valuable traditional knowledge on environmental protection.Footnote 54 Tobin explains that Indigenous rights to natural resources are ‘vital for protection of their cultural integrity and their survival as distinct peoples’.Footnote 55 Typical of accounts of Indigenous relationships with natural resources, including in the Latin American context, is a closeness or familial interconnectedness between Indigenous cultures and nature, and an obligation to care for natural resources and ensure their survival for future generations, as opposed to typical western utilitarian accounts of nature as a commodity to be used.Footnote 56
In Latin America, the rights that Indigenous peoples have over natural resources, including water, have been the subject of many significant decisions of the Inter-American Court of Human Rights, which emphasize the right of Indigenous peoples to communal property over their resources in confronting resource development and extraction.Footnote 57 These decisions often refer to the protection of Indigenous territorial rights to natural resources under the International Labour Organization (ILO) Convention 169 on the Rights of Indigenous and Tribal Peoples,Footnote 58 which a number of Latin American countries (including Chile) have ratified. ILO Convention 169 requires states to ‘respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories’,Footnote 59 to recognize the ‘rights of ownership and possession’ which Indigenous peoples have over their traditional territories’,Footnote 60 and to safeguard the rights of Indigenous peoples to ‘participate in the use, management and conservation of these resources’.Footnote 61
In the Australian context, the concept of environmental flows has at times been interpreted by governments as encompassing a flow of water for Indigenous ‘cultural’ purposes, although some scholars have advocated the recognition of ‘cultural flows’ separate from environmental flow policies.Footnote 62 The Australian National Cultural Flows Project, for example, has attempted to ‘secure a future where First Nations’ water allocations are embedded within Australia's water planning and management regimes, to deliver cultural, spiritual and social benefits, as well as environmental and economic benefits, to Aboriginal communities’.Footnote 63 The project adopts the definition of cultural flows from the Echuca Declaration, as:
water entitlements that are legally and beneficially owned by Indigenous Nations of a sufficient and adequate quantity and quality, to improve the spiritual, cultural, environmental, social and economic conditions of those Indigenous Nations. This is our inherent right. Footnote 64
The idea of ‘cultural flows’ has emerged from Australia as an attempt by Indigenous communities to leverage government support of environmental flows for specific Indigenous interests,Footnote 65 and ensure that an adequate flow of the river is set aside for Indigenous values or uses in water planning. However, some scholars have criticized the cultural flows policy in Australia on the basis that the terminology of cultural flows has been seized by Australian governments as a way to subsume Indigenous water interests within existing environmental flow regimes without needing to confront the difficult question of redistribution.Footnote 66 Until recently, cultural flows have enjoyed little concrete action, in Australia or elsewhere, in terms of demarcating flows within a river or other waterway for Indigenous use. Those critical of cultural flows prefer to focus on the need for substantive water rights or allocations for Indigenous peoples to use water for any purpose they may wish, including commercial use.Footnote 67
A recent article by Douglas and others helpfully emphasizes the diverse uses that Indigenous peoples make of rivers, and encourages water planning to account for a range of Indigenous water uses and values, including through environmental flow processes. The authors develop a ‘hydro-socio-ecological conceptual model’ for the impacts of water abstraction in the Australian context, which involves a complex interplay of social, cultural, and environmental dimensions.Footnote 68 The authors identify a ‘need to recognize Indigenous and non-Indigenous governance and management systems at multiple scales to build legitimacy in e-flows and water planning’ and ‘propose guiding principles for using e-flows to protect aquatic ecosystems and their dependent human cultures and livelihoods’.Footnote 69
For the reasons emphasized by Douglas and his co-authors, we consider that it is important that any environmental flow regime should contemplate setting aside a flow of a river for Indigenous interests, and meaningfully collaborate with Indigenous communities and institutions in environmental water management. This is especially important in the context of market-based allocation frameworks and strongly protected private use rights, where, without a specific flow allocation, Indigenous water use and management may be overridden by other users.Footnote 70 The idea of involving governance by Indigenous peoples and accounting for their rights in environmental flows should be considered complementary to, and should not come at the expense of, the need for consumptive rights for Indigenous peoples to take water for any (including commercial) purposes. As Jackson puts it:
In the pursuit of opportunities to secure water for Indigenous use, instruments that deliver water to the environment could serve as model institutions through which to redress the historical neglect of Indigenous water rights and interests and the transparently inequitable distribution of water.Footnote 71
3. CHILE: A COUNTRY OF RIVERS
Chile is a long and narrow country,Footnote 72 and water resources and demand are unequally distributed throughout its 101 water basins. Chile's hydrography presents particular challenges for water regulation, with varying climate and geography across the territory influencing various freshwater ecosystems in different ways. The Chilean economy depends on a reliable supply of water for water-intensive activities like agriculture, agroforestry, fisheries, and mining, which (when combined) total almost 70% of the country's exports.Footnote 73 These activities present ever-increasing threats to the quality and the availability of water resources for environmental and social uses.Footnote 74
In July 2016, the OECD released an Environmental Performance Review for Chile.Footnote 75 The report recognizes both the significance of many Chilean regions in terms of global biodiversity, and the intense pressure on natural resources exerted by Chile's extractive economy. Specifically, the OECD noted that freshwater ecosystems suffer from poor water quality and a large number of freshwater species are endangered.Footnote 76 Moreover, the actual state of many of Chile's rivers is unknown, as a result of the collection and maintenance of ‘partial and unsystematic’ information on the condition of aquatic ecosystems.Footnote 77
Alongside the environmental degradation of Chile's water resources, Chile has experienced a growth in water-related social conflicts in recent years, between various user groups with differing water values and competing demands.Footnote 78 Bauer has helpfully characterized these conflicts into four basic types (paraphrased below):Footnote 79
• river basin conflicts, particularly in central and southern Chile, involving multiple users of surface water, with hydropower often being the driving factor;
• conflicts about over-exploited groundwater systems, particularly in the north, driven by large-scale mining, agriculture, and urban growth;
• conflicts about social and environmental issues broader than water use, but in which water issues are central. These conflicts typically involve large mining projects in northern and central Chile, or large hydroelectric projects in the south;
• disputes that do not relate directly to conflicting water uses but are more directly political, driven by clashing views about the water law itself and its fundamental rules, principles, and ideology.
A review by the Chilean Human Rights Institute in 2018 established that out of 116 socio-environmental conflicts within the country, 38% relate to the energy productive sector and 28% to mining activities.Footnote 80 Specifically in relation to conflicts over water, a 2010 report by environmental non-governmental organization (NGO) Chile Sustentable reported 26 conflicts across the country.Footnote 81 According to this data, one out of 13 conflicts in the north is linked to mining projects; in the central region four out of six conflicts concern energy and hydropower developments; and in the southern region six out of seven have arisen from the construction of hydroelectric power stations.
There are a number of emblematic cases of Chile's water conflicts, which have taken place throughout the length of Chile. One of these concerns the Loa river basin in the north of Chile, where water extractions for mining have had the effect of displacing local Indigenous agriculture.Footnote 82 At the beginning of the 20th century, extraction of copper, lithium and other minerals began in the north of Chile, producing various adverse impacts on freshwater resources and local Indigenous communities.Footnote 83 After decades of mining expansion the condition of rivers in the north of Chile is considered critical, as groundwater resources have reached exhaustion, and some glaciers, high-altitude grasslands and wetlands have been irreversibly affected.Footnote 84
Another well-known case is that of Petorca in the central region, where agricultural expansion has compounded the effects of drought, leading to the area being declared a ‘scarcity zone’,Footnote 85 and drinking water now needs to be regularly trucked into the area.Footnote 86 As a result of increasing water scarcity in northern and central Chile, private companies seek increasingly inventive ways to access water for their commercial activities, including developing major projects for the desalinization of seawater.Footnote 87
In stark contrast to the dry and over-allocated north, the south of Chile experiences high levels of rainfall, thus enabling a greater surface recharge. The region also has lakes, rivers, snow and glaciers, which act as important water reserves, which means that the availability of water is higher than demand for it.Footnote 88 The socio-environmental conflicts in these regions have been linked historically to major hydropower development,Footnote 89 and the need to protect freshwater resources to maintain the state of free-flowing rivers.Footnote 90 One of the most controversial water conflicts in Chile's south concerned the (now discontinued)Footnote 91 Hydroaysen megaproject:Footnote 92 a 2,750-megawatt hydroelectric power development project comprising five dams in Patagonia – three on the Pascua river, and two on the Baker river.Footnote 93 Conflict between developers and the government on one side and local communities and environmental activists on the other divided the country between those who believed that the Hydroaysen was necessary for Chile's energy security and those who saw freshwater resources as Chile's most important asset to be protected for present and future generations.
Throughout Chile, concern about the adequate protection and fair distribution of water continues, in the context of increasing pressure on water from industry (typically mining and hydroelectric development), irrigated agriculture, and urbanization. Concerns about the state of Chile's water resources and the impact of development have also been voiced by Indigenous communities, including through resistance to water bottling operations and mining megaprojects in the north, and hydroelectricity developments in the south.Footnote 94 Examples of this are the Pehuenche-Mapuche Indigenous opposition to the Ralco dam development in the south of Chile,Footnote 95 and resistance to the Pascua Lama gold mining project by the Diaguita Huascoaltino Indigenous communities of northern Chile.Footnote 96
Looking to the future, Chile is highly vulnerable to the impacts of climate change, and the Ministry of Agriculture has acknowledged that Chile's main challenge in terms of climate change mitigation, adaptation and resilience concerns the use and management of freshwater resources.Footnote 97 The latest data from the World Resources Institute places Chile at 18th among the world's countries under water stress, with a ‘high baseline of water stress’,Footnote 98 a situation exacerbated by the effects of climate change.
Water in Chile, as in many other countries, is subject to increasing conflict, as the status of water rights as private ‘property’, and the lack of institutional capacity or willingness to regulate its use, undermine the potential for the transformative change needed to secure the protection of freshwater resources for present and future generations. In this context, and in the light of increasing concern about additional pressures to be placed on Chile's water resources through climate change, there is a need for robust and comprehensive water planning to protect environmental and cultural interests.
4. ENVIRONMENTAL FLOWS IN CHILE: THE LEGAL FRAMEWORK
4.1. The Legal Framework for Water
Since the time of Spanish colonization, Chile's political and social history has been characterized by ideological extremes and constitutional contrasts, which have included socialist governments focused on progressive social reform from the late 1960s and a conservative (and later neoliberal) military dictatorship from 1973 until 1990. Throughout Chile's history the allocation and exercise of rights to use water and the power of governments to regulate that use have been contentious constitutional matters, symptomatic of broader societal divisions about the role of the market and the public interest.Footnote 99
Chilean water law frameworks were overhauled during the dictatorship, as part of a wider project of neoliberal reform implemented by the military regime across a range of sectors,Footnote 100 and accompanied by rapid growth in water-related development such as mining and hydroelectricity.Footnote 101 The new approach to water regulation, enshrined in a new Water Code of 1981, combined centralized water regulation with trade in water rights (derechos de aprovechamiento), which could be transferred independently of land ownership in water markets.
Under the Water Code, and in Chile's established constitutional framework, waters are ‘bienes nacionales de uso publico’ [national property for public use].Footnote 102 However, the same declaration of water as public property allows the government to grant rights to use water, which amount to (constitutionally protected) private property,Footnote 103 equivalent to rights of absolute ownership.Footnote 104 In fact, water rights enjoy the strongest form of property right available under Chilean law,Footnote 105 described as an absolute, exclusive, and perpetual right to use, enjoy and dispose of a thing.Footnote 106 The status of water rights differs greatly from rights over other resources in comparative Chilean concessional regimes,Footnote 107 as water rights are granted in perpetuity, without cost.
Constitutionally protected water rights may either be ‘created’ or ‘recognized’ by law. Water rights are ‘created’ where new rights are allocated to users by the Dirección General de Aguas [General Water Directorate] (DGA) under the Water Code by way of an administrative concession, provided that the applicant satisfies a number of formal and substantive requirements,Footnote 108 which include proving the ‘availability of the resource’.Footnote 109 They may also be ‘recognized’, either based on historical titles or via the judicial process of regularization, which requires applicants to prove uninterrupted productive useFootnote 110 of the water since five years before the commencement of the Water Code (that is, since 1976), ‘without force or illegality’ and ‘without recognizing the rights of others’,Footnote 111 in a process similar to the doctrine of adverse possession at common law.Footnote 112 The regularization process was intended originally to be a transitional measure to support the setting up of a complete water register necessary to encourage water markets after the enactment of the 1981 Water Code; however, regularization cases have continued. In parts of Chile, the regularization process has been used to recognize the customary water rights of Indigenous communities as well as ongoing use by other historical users, and to register their water rights;Footnote 113 this presents particular challenges for forward water-related planning. Finally, water rights that have already been allocated may be purchased from other users by private bargaining in water markets.
Water use rights are merely classified as ‘consumptive’ or ‘non-consumptive’,Footnote 114 with no priorities for various uses, such as human consumption, environmental interests, or cultural uses. Until 2005 applicants for new water rights were not required to specify their intended use of water. Following an amendment in 2005, Articles 131 and 132 of the Water Code require the applicant to explain the proposed use for applications above a certain flow, although the proposed use is not binding. In any event, in order to facilitate water markets, water users may change their use of water at any time – for example, from small-scale agriculture to mining, or from ecotourism to hydro generation – although, like market transfers, such changes in use are understood to be rare in practice.Footnote 115
The status of freshwater resources as ‘national goods for public use’ has typically been construed to mean that, rather than being owned directly, they are allocated by the government pursuant to a concessional regime for their use and management.Footnote 116 However, the DGA has few regulatory powers for water, and it exercises those powers sparingly.Footnote 117 The model empowers private water user associations to ‘manage and distribute’ the various water rights in natural rivers at basin or semi-basin level in corporate organizations known as Juntas de Vigilancia [Water Monitoring Boards].Footnote 118 The Boards have ‘wide powers under the Water Code to monitor and manage the rivers within their control, including ensuring efficient water rights distribution, and protective and remedial measures to protect river health’.Footnote 119 According to Rojas Calderón, these private Boards have the ‘public’ function of managing river distribution and health across the whole catchment,Footnote 120 and Vergara Blanco argues that they have general powers for the governance and conservation of rivers,Footnote 121 although, as corporate entities accountable to private users as shareholders, it is doubtful that this public interest overrides any private benefit in the Boards’ decision-making process.Footnote 122
According to Bauer, weak capacity for water governance under the Chilean model has been ‘built into the institutional framework, which had been built primarily to protect private property rights and to allow free market transactions without government interference’.Footnote 123 There is also a particular productivist logic to the government's minimalist approach to regulation, which emphasizes economic efficiency at the expense of environmental, social or cultural outcomes. Nahuelhual and others explain that the predominant view within Chile's ‘weak’ institutional framework for water is that ‘water is a natural resource disconnected from other components of the socio-ecological system’.Footnote 124 The administrative focus is on access to water and its most efficient use, while ‘no formal rules regard the protection of forests or watershed heads as key ecosystems to maintain water provision and regulation’.Footnote 125
4.2. Minimum Flows under the Water Code and Environmental Law
The 1981 Water Code did not contemplate the environmental implications of the management of water and the protection of freshwater ecosystems. When the system of water regulation under the Water Code was established, there was no specific allocation of water to the environment and no reference to environmental flows.Footnote 126 This was despite the fact that Chile's Constitution protects:
[t]he right to live in an environment free of contamination. It is the obligation of the State to ensure that this right is not affected and to uphold the preservation of nature.
The law may establish specific restrictions on certain rights or freedoms in order to protect the environment.Footnote 127
The constitutional protection of environmental rights has been interpreted in Chilean scholarship as requiring the state to react appropriately to activities that undermine the preservation of nature,Footnote 128 and take action before any infringement, thus enshrining a precautionary approach in Chilean environmental law.Footnote 129
The lack of an express legislative requirement for minimum ecological flows did not preclude their establishment, and the DGA began to create them for specific projects or activities in as early as 1982,Footnote 130 with different criteria applied depending on the area to be protected or the characteristics of the case.Footnote 131 Until 1993 there were up to ten projects involving environmental flow rates established each year in the central and southern regions of Chile, which specified a minimum amount of water that may not be extracted from the river by the holder of the water right. However, the practice of applying minimum ecological flows operated in a discretionary and unsystematic way.Footnote 132
In the absence of an express provision, the DGA relied on a number of regulatory powers with regard to water as implied authority to establish the first minimum flows. These included, foremost, the constitutional right to a clean and healthy environment. The DGA also took authority from the public interest in water management, given the status of waters as bienes nacionales de uso público [national property for public use] under the Water Code and Civil Code.Footnote 133 The DGA has taken further mandate from its powers under Articles 299(a) and 300(a) of the Water Code (to plan the development of freshwater resources, implement necessary measures to prevent and avoid the exhaustion of aquifers, and regulate to ensure the correct application of the law) to authorize a general regulatory role for environmental water. However, again, the environmental flows have been applied in a discretionary and ad hoc manner.
The DGA ordered the first Chilean study on environmental flows in 1993,Footnote 134 which provided some information about the ecological state of rivers in certain regions. The study proposed ‘reasonable limits’ on the extraction of freshwater resources in those rivers, applying various legislative requirements and methodologies. However, it did not prescribe a specific methodology on how to determine minimum environmental flows. Rather, it stated that the choice of specific method and technology will depend on the circumstances of the case.Footnote 135
The power of the DGA to establish minimum ecological flows has been variously challenged in the courts, on the basis that no express positive law provides for it. Two well-known cases involve the Maipo river basin in Chile's central region, where a technical report commissioned by the DGA in May 2003 concluded that no new water rights should be created in the three sections of the Maipo river and recommended the establishment of minimum ecological flows.Footnote 136
The first of these cases was the 2005 Supreme Court casación en el fondo (similar to judicial review in the common law sense) of Aguas Chacabuco v. Dirección General de Aguas.Footnote 137 The case concerned an application by a private company (Aguas Chacabuco S.A.) for consumptive water rights to take and use water from a wetland near Santiago. The DGA had denied the request on the basis that the May 2003 study confirmed that there was insufficient water in the Maipo basin for the grant of new water rights. The company argued that the DGA had no power to refuse the application, as the applicant had satisfied all requirements of the Water Code and, in particular, that the DGA had no power to take into account minimum ecological flows when determining whether there was ‘availability of the resource’ as required by Article 141 of the Water Code. The Supreme Court confirmed the power of the DGA to refuse the application for a water right, as there was insufficient water available for the right to be granted.Footnote 138 In doing so, the Court emphasized the right to a clean and healthy environment in Article 19(8) of the Constitution,Footnote 139 and pointed to the requirement for public authorities to protect conservation and biodiversity in Articles 41 and 42 of the Environmental Law, as well as a general and inherent power for the DGA to set aside minimum flows under the Water Code.Footnote 140
The second case was the 2006 Supreme Court decision Olga Prieto Poklepovic v. Dirección General de Aguas,Footnote 141 which concerned an application for the right to take and use water from the Mapocho River, a tributary of the Maipo. Based on the May 2003 technical report, the DGA had denied the application on the basis of insufficient water being available. The Court, for the same reasons given in the Chacabuco case, affirmed the power of the DGA to deny the application and maintain minimum ecological flows, explaining:
[I]n determining whether or not there is availability of a water resource, the General Water Directorate is not only empowered to consider the existence of ecological flows at the moment of establishing whether or not there is availability of the resource, rather it is obligated to do so, given that it must respect what is established by the Environmental Law, which accords with article 22 of the Water Code …. All of the above follows from the quality of waters as national property of public use, according to article 5 of the Water Code together with articles 589 and 595 of the Civil Code, which means that their ownership and use belongs to all the nation. The State, being responsible for their administration, must ensure that [water] is permanently destined for the common use.Footnote 142
Minimum flows have also been established under the 1994 Environmental Law (here referred to as ‘environmental flows’ to distinguish them from minimum ecological flows set by the DGA).Footnote 143 Article 41 of the Environmental Law established that natural renewable resources (which, for the purposes of the Law, include water) must ‘be used in a way that ensures their potential to regenerate and their associated biological diversity’.Footnote 144 Article 42 goes on to require the Ministry for the Environment and all public bodies involved in the regulation of natural resource use to secure their conservation, referring specifically to the maintenance of water flows and the conservation of their beds. The Environmental Law also introduced the main regulatory instruments now available for water quality management, which include environmental water quality standards, emission standards, decontamination plans and strategies, and environmental impact assessments for new projects or activities.Footnote 145
Under the Environmental Law, environmental flows have at times been set on a case-by-case basis as part of the environmental impact assessment process for major projects established under the Law. The Sistema de Evaluación de Impacto Ambiental [Environmental Impact Assessment System] is a procedure designed to assess the environmental impact of development projects or activities that need a permit to operate (an environmental qualification resolution, or RCA).Footnote 146 If the project or activity includes one or more of the activities set out in Article 10 of the Environmental Law, an estudio de impacto ambiental [environmental impact assessment] is required.
If the project will produce one or more of the impacts set out in Article 11 of the Environmental Law and, specifically, could impact on freshwater resources, the Environmental Impact Assessment Service is authorized to set minimum environmental flows, as mitigation measures.Footnote 147 For example, in the hydroelectric project Perquilauquén, in the Biobío region, the Service established minimum environmental flows and additional water rights (0.109 cubic metres per second (m3/s)) which the company will have to leave in-stream for other downstream users (a ‘caudal pasante’).Footnote 148 Since 2016, the Service has operated under a specific guideline for setting environmental flows for hydroelectric projects,Footnote 149 which adopts the 2007 Brisbane Declaration definition of environmental flows, and incorporates an ‘integral vision of the water system’ incorporating human uses of the system, distinct from the minimum ecological flows set by the DGA, which are based only on hydrological criteria.Footnote 150
The power of the Service to institute minimum environmental flows has been criticized on the basis that it duplicates the functions of two separate government institutions and creates ambiguity around the nature and scope of environmental flows.Footnote 151 In practice, however, the Service has rarely departed from the approach for setting proposed minimum ecological flows recommended by the DGA.Footnote 152 At the same time, the Service is not legally bound by the current limits imposed by the DGA for minimum ecological flows,Footnote 153 and the Service could in fact enhance the protection of freshwater resources, by taking into account other elements that might not be considered as part of the DGA's methodology in determining minimum environmental flows.
Since 1994 the DGA has systematically applied minimum ecological flows when granting new water rights. Its approach has been to set a minimum environmental reserve for surface watercourses, and grant future applications for water rights only for flows above this level.Footnote 154 In 2002 the Directorate passed a regulation – the Manual of Regulation and Procedures for the Management of Freshwater Resources – to provide detailed guidelines on the setting of environmental flows, including a hydrological method for determining minimum ecological flows.Footnote 155 The method typically requires a minimum ecological flow of 10% of the annual average flow and 50% of the minimum dry season flow across the 95th percentile of years.
In 2005, after 13 years of debate before the Parliament, a reform of the Water Code was finally passed (Law No. 20.017).Footnote 156 The amendment was hard won, with pro-market right-wing interests in fierce opposition to left-wing proponents of more interventionist reforms.Footnote 157 Without altering the neoliberal ideology behind the Water Code, the 2005 amendment formally introduced a requirement to set minimum ecological flows in the process of granting new water rights, confirming the loose practice that the DGA had followed since 1982. New Article 129 bis 1 of the Water Code provided that:
[i]n granting water rights, the General Water Directorate should ensure nature's preservation and environmental protection, establishing to that end a minimum ecological flow, which will only affect newly granted water rights, and should also consider the relevant natural conditions for each surface source.
The amendment did not provide a definition of ‘minimum ecological flow’, but provided that they may not amount to more than 20% of the average annual flow rate in the corresponding watercourse.Footnote 158 The amendment also provided an exception allowing the President of the Republic, following a favourable report from the Ministry of Environment, to issue a decree specifying a different minimum ecological flow, which could be higher than the legal limit of 20%, but less than 40% of the average annual flow rate in the corresponding watercourse.Footnote 159
The legislation did not provide a methodology or procedure for calculating minimum ecological flows, and therefore did not provide any reason to depart from the criteria previously used by the DGA (in the 2002 Manual). However, in 2008 the DGA approved a new Manual for the Management of Freshwater Resources, which introduced a new rule that changing the point of capture of water under an existing water right would be treated as establishing a new water right, allowing the DGA to apply a minimum ecological flow. The DGA did so by applying a broad interpretation of Article 163 of the Water Code, which provides that approval is required to change the location of a water collection or extraction point. This interpretation was controversial and has been challenged more than once in court.Footnote 160 However, the Supreme Court, in the 2012 case of Sergio Menichetti Cuevas v. Dirección General de Aguas, agreed with the approach taken by the DGA in setting minimum ecological flows in relation to a request for a change of capture point, and emphasized the important role the DGA should play in protecting freshwater resources:
This is a restriction that, moreover, is the obligation of the authority, in order to give effect to article 41 of the Environmental Law, which provides that the use and enjoyment of renewable natural resources must be carried out in a way that ensures their capacity for regeneration and the biological diversity associated with them. This is particularly important in the case of species that are at risk of extinction, vulnerable, rare or insufficiently understood, and is required to be followed by all public services concerned with the maintenance of environmental flows and the conservation of their beds.Footnote 161
Despite the developing regulatory framework in Chile to protect environmental flows, there is still strong resistance from industry and commercial sectors to the application of minimum flows to pre-existing water rights, as well as inadequate exercise of regulatory power by the DGA.Footnote 162 Opponents of environmental flows fiercely defend their constitutionally protected private property rights to water, in direct opposition to the constitutionally mandated responsibility and power of the state to protect freshwater ecosystems.Footnote 163 Given that most river basins in the north and central parts of Chile were fully allocated, and in some cases over-allocated,Footnote 164 since before the 2005 reform and in some cases since before the commencement of the Water Code, the potential reach of minimum ecological flows for the grant of new water rights is significantly limited.Footnote 165
Another amendment introduced by the 2005 water reforms had the perverse outcome of disincentivizing the protection of environmental water in-stream. This was the introduction of annual taxes for instances of non-use of water rights,Footnote 166 designed to protect against water speculation and ensure that parties who hold the rights make use of them for their stated purpose.Footnote 167 ‘Non-use’ is assumed where water capture works are absent,Footnote 168 such as canals or irrigation systems, and a number of provisions in the Water Code set out the process for charging the taxes. In respect of non-consumptive water rights the Water Code provides an exception for small, localized volumes of less than 100 litres per second in the drier regions in northern Chile and the Metropolitan Region or 500 litres per second in regions south of Santiago.Footnote 169 However, as a general matter, if someone wanted to ‘not use’ their water rights for productive purposes and instead leave them in-stream for conservation purposes, and therefore could not point to the necessary water infrastructure, they would be required to pay fines under the legislation. ‘Fees for non-use’ have been challenged in the courts, generally by those seeking exceptions or the expansion of existing exception categories,Footnote 170 including in the case of Indigenous communities under the Indigenous Law, discussed below.
Where minimum flows can be established, there are several other matters that significantly undermine their potential to protect or restore aquatic ecosystems. The first of these is a lack of adequate information about the state of particular waterways and their various uses (discussed above), making it very difficult for the DGA or Service to accurately set or maintain appropriate levels for minimum flows. In order to manage and protect freshwater resources, regulatory institutions must have accurate information about the state of water resources and an understanding of the number of rights holders, the nature of their rights, and the number of users extracting water from a river without any permit (or at least a mechanism to penalize unlawful use). However, the DGA has incomplete data on the actual state of waterways or their users in Chile. This is for a number of reasons.
Firstly, as mentioned above, water rights can come into being not only via administrative grant, but also where recognized by the courts in the process of regularization, which may recognize ‘historical’ water users retrospectively as legitimate rights holders, without any prior accounting. Secondly, many historical water users resist regularizing their water rights with the DGA's Public Cadastre of Water to avoid being levied fees for non-use, despite campaigns by the DGA to encourage regularization, which means that ‘illegal’ water use is widespread.Footnote 171 Thirdly, water rights are transferable within water markets, and there is no enforceable mechanism to register water rights and transfers, making it extremely difficult for the water authority to keep track of many of them.
The second factor undermining the potential of minimum flow regimes is that, under the current regime, new water users bear the burden of ensuring minimum flow rates in order to protect freshwater ecosystems. Established water rights holders continue to use water resources without any limitation, despite never having paid for their rights. This situation raises concerns about equity in water regulation,Footnote 172 especially when combined with the impacts of drought and climate change, which have considerably reduced the amount of water available in riverbeds. Many politicians, industry and productive sectors continue to resist any sort of redistribution or abrogation of water rights, pointing to the constitutionally protected right to property. In debates surrounding the 2005 reforms these sectors expressed fear that the obligation to establish a minimum ecological flow for pre-existing water rights would amount to a retroactive application of the law, which would effectively amount to an expropriation of private property rights.Footnote 173
Thirdly, Chilean environmental institutions have conceived of and developed environmental flow methodologies and policies in a particularly limited way. The Brisbane Declaration defines environmental flows not only as ‘the quantity, timing and quality of freshwater flows and level necessary to sustain aquatic ecosystems’, but as supporting other uses, including cultural uses and wellbeing.Footnote 174 However, the Chilean minimum flows framework has far more limited objectives geared towards the ‘preservation of nature’ and ‘to establish the natural conditions relevant to each superficial flow’.Footnote 175 The focus in Chilean law and policy has been only on the minimum amount of water ‘needed’ in the river, with no reference to quality, and excludes other factors that could influence that ecological value, such as landscape, tourism, social or cultural uses,Footnote 176 relevant for enhancing the river's value more broadly. Nor does the hydrological method used by the DGA account for the interaction of surface water resources with groundwater, necessary for an accurate understanding of complete aquatic ecosystems.
Fourthly and finally, instead of establishing a minimum percentage of water to be kept in-stream as an ecological flow and placing a cap on extractions, the Chilean legislation sets a maximum limit for the minimum ecological flow, which may not be greater than 20% of the average annual flow rate in the corresponding watercourses, or 40% in exceptional cases. These rules transform the minimum ecological flow into a negative restriction on the amount of water that can be protected within the river, inconsistent with the original purpose of environmental flows as a protective target. The legal limits on flows established do not appear to be based on any defensible methodology,Footnote 177 and more water, above the 40% average annual flow rate, may in fact be necessary or desirable to restore and ensure a healthy river ecosystem and uses of the water flowing through it.
4.3. Indigenous Water Rights and Implications for Environmental Flows
In addition to concerns about the environmental state of Chile's rivers, Indigenous communities voice growing concern about the unfair distribution and poor management of Chile's water resources.Footnote 178 The Chilean Indigenous population makes up approximately 12.8% of the total population, within nine Indigenous ethnicities recognized by the Indigenous Law,Footnote 179 all of which are culturally and linguistically distinct.Footnote 180 The Indigenous peoples living within the territory now known as Chile have been subject to widespread historical injustice and dispossession of their traditional lands and resources.Footnote 181 Their territorial rights are now recognized, to a limited extent, in domestic and international law, including ILO Convention 169, which Chile has ratified.Footnote 182
Indigenous relationships with and interests in water resources in Chile are both distinctive and variegated, although there is a clear emphasis on spiritual as well as economic water values and a territorial approach to land and water connectivity.Footnote 183 According to Babidge, who has conducted recent anthropological research on Indigenous communities’ water use and interactions with mining companies and the government in northern Chile, Indigenous water interests are characterized by ‘complex waterscapes, where neither “rights” nor “values” capture the totality of Indigenous interests and processes’, which include social, cultural, spiritual, economic, and environmental dimensions.Footnote 184
The term ‘cultural flow’ (‘caudal cultural’ in Spanish) is not used in Chilean law or commentary, although there is some acknowledgement of the social and cultural dimensions of the environment in the Chilean legal framework. The Environmental Law, for example, defines the ‘environment’ as:
[t]he global system comprised of natural and artificial elements of a physical, chemical or biological nature, sociocultural elements and their interactions, in permanent modification by human or natural activities, and which regulate and affect the existence and development of life in its multiple manifestations.Footnote 185
However, Indigenous peoples’ water use enjoys no mention in the Chilean legislative provisions or policy frameworks for environmental flows, for neither productive nor environmental uses. This is despite the fact that Chile has a comparatively strong legislative basis, under the 1993 Indigenous Law, for allocating water use rights to Indigenous peoples for a range of purposes.Footnote 186
Article 64 of the Indigenous Law protects the rights of Aymara and Atacameña Indigenous communities from northern Chile over waters in their traditional lands, providing:
The waters of the Aymara and Atacameña communities must be especially protected. Waters, including rivers, canals, streams and springs, found on the lands of the Indigenous Communities established by this law will be considered property owned by and for the use of the Indigenous Communities, without prejudice to the rights that other right holders have registered in accordance with the Water Code.
No new water rights shall be granted over lakes, ponds, springs, rivers and other aquifers that supply waters owned by the various Indigenous Communities established by this law without first guaranteeing normal water supply to the affected communities.
The protection of Indigenous water rights in Article 64 was introduced for a number of reasons, including in recognition of distinctively cultural Indigenous water interests as territorial rights connected to land, and as an attempt to halt or reverse the obstruction of Indigenous water access by other interests.Footnote 187
These are referred to as ‘ancestral’ water rights and are equivalent to rights of ownership in the common law sense and are protected as property by the Constitution.Footnote 188 Consistent with typical conceptions of Indigenous resource rights in international debates, the rights recognized by Article 64 are communal in nature which, in Prieto's words, ‘completely changed the institutional framework through which water could be managed in the Atacameño area, departing from the 1981 Water Code's logic and opening the possibility of collectivization’.Footnote 189 Although Article 64 refers specifically to the Aymara and Atacameña communities, it has been relied on to protect or recognize the rights of other Indigenous communities in Chile to access and use water.Footnote 190
In order to obtain recognition of such ancestral rights, an Indigenous community may apply to the court for the regularization of their historical water use as a water right pursuant to both Article 64 of the Indigenous Law and transitional Article 2 of the Water Code.Footnote 191 To do so, the community must satisfy the requirements of Article 64 as well as the additional requirements to prove historical use since 1976 in the regularization process, discussed above.Footnote 192 The evidence put forward to accredit such use typically refers to the existence of ancient water infrastructure for irrigated agriculture, like canals or terraces.Footnote 193 As a consequence, and because of the difficulty of proving productive use that is non-consumptive or involves groundwater in the absence of water infrastructure, ancestral water rights have typically been recognized in reliance on Article 64 for the consumptive use of surface waters only.Footnote 194 Indigenous communities would be unlikely to succeed in an application for regularization of historical water use for environmental or conservation purposes where the objective is to leave the water in-stream.Footnote 195
Because much of the surface flows of Chilean rivers were already fully allocated by the time the Indigenous Law was enacted, the Law also set up a redistributive measure – the Indigenous Land and Water Fund – to finance the acquisition of water rights for Indigenous communities.Footnote 196 This includes funding regularization cases and the necessary production of expert evidence and legal and court fees, but the Fund has been used also to finance the constitution and purchase of water rights for Indigenous groups throughout Chile. As in the case of ancestral water rights protected by Article 64, water rights acquired with the support of the Fund are equal to the consumptive water rights held by any other user (constitutionally protected property rights), subject to the proviso that they cannot be transferred separately from the land to any non-Indigenous user for 25 years unless the Fund is repaid.Footnote 197
However, as is the case with ancestral water rights protected by Article 64 of the Indigenous Law, Indigenous communities have benefited from the Fund only where they can prove historical use and ongoing intent to use water for productive, usually agricultural, purposes. The government's intention has always been that the Fund will support the economic development of Indigenous lands,Footnote 198 and regulations prescribing the factors the government must consider before granting subsidies for water rights acquisition refer specifically to the agricultural benefits from irrigation for the lands affected.Footnote 199 Again, it is unlikely that an Indigenous community could access water rights with the support of the Fund for in-stream environmental or conservation purposes.
Aside from these two main water provisions, two provisions were added to the Indigenous Law as part of a minor amendment to the Water Code in 1992, in response to concerns about the over-extraction of aquifers by mining interests in the north of Chile.Footnote 200 These prohibit exploration and the extraction of groundwater from aquifers that supply certain wetlands of particular significance to Indigenous communities in the north of Chile, unless express permission has been granted.Footnote 201 The provisions thus indirectly protect the flow of these areas. However, Yañez and Molina suggest that these protections may have come too late for some northern wetlands, which had already been over-extracted by mining interests by 1992.Footnote 202
A major limitation of the legal regime for the recognition and allocation of Indigenous water rights in Chile is the failure of the government to prospectively plan for and comprehensively provide for Indigenous water use. Regularization cases are ad hoc and depend both on government funding and support, and on the varied reasoning and approaches of judges,Footnote 203 thus producing a ‘patchwork’Footnote 204 of Indigenous water rights throughout the country. Where water rights are already allocated to other users, a lack of prospective planning now leaves little potential to set aside a flow for Indigenous use without some form of redistribution. As mentioned, the processes for allocating water rights to Indigenous groups also favours productive water uses, and there is little to no incidence of Indigenous communities being allocated a share of water for cultural or conservation interests alone.
From 2005 to 2014, Indigenous communities who did not use their water rights for productive purposes could also be charged the tax for ‘non-use’ if they could not show the necessary water capture infrastructure, further disincentivizing water protection on environmental or conservation grounds. The Supreme Court held, in 2014, that in certain circumstances Indigenous communities can acquire water rights over in-stream flows and retain them without having to extract freshwater resources, without having to pay a fine for non-use of the resource.Footnote 205 The Court's legal reasoning was that fees for non-use could not be levied against Indigenous communities who hold water rights acquired with finance from the Indigenous Land and Water Fund because to do so would constitute an ‘alienation’ of such rights, in contravention of Article 22 of the Indigenous Law. However, the judgment does not engage with the broader context, including the implications and broader recognition of Indigenous water values and interests, environmental or conservation aspirations, or the ecological benefits of leaving water in-stream. The Court's decision was followed by a proposal that small agricultural and peasant communities and Indigenous peoples be granted a regulatory exemption from non-use taxes. However, the proposed amendment was not approved and has since been archived, leaving ongoing uncertainty for Indigenous water users.Footnote 206
Despite the limitations of the Chilean Indigenous water provisions, Indigenous peoples do have constitutionally protected water rights in Chile, and at a minimum these should be taken into account when planning and implementing environmental water management approaches, including environmental flows. In these circumstances there is a clear need for meaningful engagement with Indigenous communities in Chile around their water rights, needs and aspirations. All institutions involved in environmental water regulation need to ‘understand Indigenous water values, connections, and relationships at the appropriate scales’, and design approaches that ‘better accommodate multiple and often conflicting ways of interacting with, valuing, and relating to rivers’.Footnote 207 Marín, a Chilean Indigenous scholar, has emphasized this challenge not only in terms of inclusive water governance and planning, but as a constitutional challenge, requiring the redistribution of resources rights and decision-making power:
Under the neo-liberal frame, the constitutional debate over Atacameños or Aymara water rights needs more than the mere acceptance of pluralism; recognition in the new Constitution needs to pursue the redistribution of power and resources between the Chilean state and Indigenous People through constitutional law.Footnote 208
4.4. Water Reform and the Constitutional Crisis
Chilean governments have now revisited the Water Code several times, and numerous draft reform proposals have been developed, and shelved.Footnote 209 The most recent substantial reform proposal was introduced in 2011 by a group of Parliamentarians, drawing together a number of reforms proposed between 1992 and 2011.Footnote 210 The government amended this proposal in 2014 and presented a new consolidated water reform project, which is still before Parliament.Footnote 211 Among other objectives, the reform proposal sought to strengthen the government's oversight role with regard to water, and incentivize a more equitable distribution of water rights. The government presented the reform proposal with the message:
Our legislation, from early on, has maintained that ‘waters are goods of public use’. However, it is inconceivable that this statement becomes a dead letter: it is necessary to provide it with substance.Footnote 212
The main reforms proposed by the government included a change in status for new water rights, from perpetual to temporary (30 years, extendable), and the expiration of water rights for non-use (four to eight years depending on whether they are consumptive or non-consumptive). The reforms would also allow the government to (i) limit the exercise of water rights in the public interest, reducing them temporarily or redistributing water rights; (ii) introduce priority for the use of water for human consumption and sanitation; (iii) prohibit the constitution of new water rights in National Parks and Virgin Region Reserves; (iv) limit the grant of water rights in other protected areas; and (v) strengthen certain regulatory powers of the DGA.
The government continued to work on and make changes to the project,Footnote 213 but the proposal was significantly expanded, via the legislative process, after Michelle Bachelet and her centre-left coalition took office for the second time in 2014.Footnote 214 Responding to ongoing water-related protest and conflict in Chile, Bachelet had made an election promise to reform the Constitution and the Water Code as part of a broader project of social policy reform.Footnote 215
By 2016 the Lower House had added recognition of the human right to water and sanitation to the reform proposal and introduced priority uses for water (human consumption and sustainability of freshwater resources), allowing the government to create ‘water reserves’ to ensure those priority uses.Footnote 216 In terms of environmental flows, the Lower House inserted a provision that would extend the application of Article 129 bis 1 of the Water Code, requiring environmental flows to be set for all future water concessions. The Lower House also allowed the DGA to establish minimum ecological flows on water rights already allocated in areas which the Ministry of Environment considered to be threatened, degraded or prioritized ecosystems, or within ‘protected areas’.Footnote 217 In addition, it added a provision to affirm the practice of the DGA of applying minimum ecological flows where the holder proposes to change the point of water capture.
The proposed reforms, as elaborated by Parliament, included new ‘use it or lose it’ rules, whereby water rights would become extinguishable after a period of non-use, extending and attempting to improve the system of taxes for non-use.Footnote 218 This included extending the categories of exception to cases where rights holders are Indigenous people or communities (reflecting recent jurisprudence of the courts, discussed above),Footnote 219 water rights that are ‘not used’ by rights holders to maintain ecological function in protected areas declared by the Ministry of Environment, and water rights used for recreational, tourism or other projects that do not require water to be used or extracted from its source.
The reform proposal also included further substantive provisions to protect Indigenous rights to water. Clause 5 of the proposal provided:
In the case of indigenous territories, the State will ensure the integrity between land and water, and protect waters for the benefit of indigenous communities, in accordance with laws and international treaties ratified by Chile that are currently in force.Footnote 220
This proposed amendment attempted to reverse the separation of water and land rights in Chilean water law frameworks,Footnote 221 and adopts the logic of ILO Convention 169 in relation to the integrity of Indigenous territory.Footnote 222 Clause 5 left the door open to further interpretation in line with developing international commitments around environmental law and Indigenous rights, given its explicit reference to international law.Footnote 223
The reform proposal also included prioritization of water use for human consumption and sanitation,Footnote 224 in line with a shift back towards emphasizing water as a bien nacional de uso publico [national property for public use] and reflecting ongoing concerns about priority of use and unfair distribution of water. However, there was little clarity in the proposal as to how the priority mechanism would work in practice. The proposal included a number of further exceptions to general principles for Indigenous communities, apart from fees for non-use; these include exemptions from the five-year limit on regularization of water use rights,Footnote 225 and exemptions from restrictions on exercising water rights once a basin has been declared ‘exhausted’.Footnote 226
Although these Indigenous-specific protections looked promising, controversy surrounded the reform process and the Chilean government was accused of failing to properly consult with Indigenous peoples. According to the then Director of the Chilean DGA, the Parliamentary committees charged with developing the law reform proposal decided to leave the Indigenous protections out of the early stages of the reform project in order to avoid consulting with Indigenous peoples and consequent cost and delay.Footnote 227 This suggests a clear disregard not only for the legally protected rights to water held by Indigenous peoples, but also for the Indigenous right to consultation underscored in Chile's commitment to ILO Convention 169,Footnote 228 as well as domestic legislation on consultation with Indigenous peoples.Footnote 229
In any event, the Bachelet administration was unable to pass the reforms prior to a change of government in 2017 and, as of 2020, the project languishes before the Senate. The incumbent right-wing Piñera government (returned for the second time in 2017) until recently has had little appetite for reforming water law away from a market-based logic. After taking office, President Piñera announced his opposition to the water reform project, arguing that it presents uncertainty and probable loss for the Chilean agricultural sector.Footnote 230 His new government would instead provide security for water rights by re-establishing the legal certainty of new and historical water rights as property.Footnote 231 Meanwhile, it appeared, Indigenous and environmental water concerns would remain unresolved.
In August 2017 the Special Committee of Freshwater Resources, Desertification and Drought approved the reform proposal and passed it to the Agriculture Committee of the Senate.Footnote 232 The government again amended the proposal in January 2019,Footnote 233 restating the central objectives of the reform proposal as:
• addressing water scarcity;
• improving legal certainty of water rights;
• prioritizing the use of water for human consumption;
• promoting non-extractive uses;
• strengthening private water user associations;
• streamlining processes for water infrastructure permits;
• preventing water rights speculation; and
• supporting better coordination between water authorities and users.Footnote 234
As remodified by the Piñera government, the proposal reinforces the status of water rights as perpetual, transferable, and non-extinguishable. The proposal no longer refers to Indigenous peoples and instead dismisses the Lower House's modification of Article 5 to ensure the integrity between land and territory for Indigenous communities, and removes the exemption for Indigenous water users from fees for non-use.
In terms of minimum ecological flows, the amended proposal states that, even though minimum flows may have achieved outcomes in the south of Chile, ‘they are not the right tool to preserve those river basins where water rights have already been assigned in their entirety before 2005, nor to preserve groundwater’.Footnote 235 It goes on to acknowledge that ‘under the current reforms there are no incentives to voluntarily preserve environmental water, due to the fact that non-use is fined via the tariff’.Footnote 236 However, the government's analysis misses the point. The short-lived promise of the reform proposal was its potential to encourage, through legislation, the conservation of water in-stream, potentially even opening the way for international financial donors to buy and claim water rights to protect freshwater ecosystems. For the government to declare that environmental flows do not work is ironic, given that their ineffectiveness to date is as a result of the government's unwillingness to address unnecessary legal limitations on environmental flows or to use all tools available to support environmental and cultural outcomes. These limitations have been compounded by the fact that when minimum ecological flows were incorporated into legislation in 2005, most water rights in the central and north macro regions of Chile were already fully allocated, and the government has not been prepared to consider the prospect of reallocation of water for the environment.
If passed, the Piñera government's minimal water reforms will at least grant a greater oversight role to the DGA and provide more clarity regarding fines for non-use. The proposed reforms, however, as they stand do not provide sufficient tools within the existing market-based regulatory framework to encourage in-stream flow protection. Even these limited reform proposals have been met with strong opposition from commercial and industrial sectors – including the mining, energy, and agricultural sectors (and the Ministry for Agriculture in representing their interests) – who have expressed their concerns about the constitutionality of the evolving reform project, and its impact on investment.Footnote 237
The water reform proposal continued to stumble through the legislative process. The last session of the Agricultural Committee was held on 18 November 2019 and discussed water scarcity.Footnote 238 In the meantime, however, the neoliberal model underpinning the Chilean water regime has provoked renewed social contestation and a constitutional crisis, which unfolded on 18 October 2019. In the wake of social protest and the constitutional crisis, the project to modify the Chilean Constitution and related debates around the regulatory regime for water have been revived, in an effort to demonstrate the commitment of politicians to address public demand.Footnote 239
After many hours of discussion with Parliament, on 15 November 2019 the government announced an Agreement for Social Peace and a New Constitution,Footnote 240 in which the government committed to hold a referendum (initially set for 29 April 2020, but delayed to October as a result of the COVID-19 pandemic). The two questions to be asked in the referendum are: (i) whether Chile requires a new Constitution; and (ii) whether any new Constitution should be drafted by a 100% parliamentarian or 50/50 parliamentarian/elected citizen composition. Much of the detail of the referendum process is still uncertain, but there is growing public debate and social mobilization around constitutional reform and the fair distribution of rights. Certainly, Article 19(24) of the Constitution, and specifically the right to property over water rights, will play a key role in the discussions, which may have implications for the future of environmental flows in Chile.
5. TOWARDS HOLISTIC ENVIRONMENTAL FLOWS IN CHILE
There is now an international consensus around the need for the implementation of environmental flow regimes in domestic water law and policy frameworks in order to protect the health of rivers and waterways for future generations. Conceptions of environmental flows now acknowledge the social as well as the ecological functions of environmental flows, and the need for environmental flow regimes to reflect and account for Indigenous water governance and rights. Advocates of an expanded conception of environmental flows are arguing for recognition of local and Indigenous governance frameworks and interests to build legitimacy in environmental flow regimes and water planning more broadly.Footnote 241 Douglas and his co-authors provide a useful conceptual starting point for the design of a holistic environmental flow regime, which accounts for cultural as well as ecological interests.Footnote 242
The current model for environmental flows in Chile is not holistic. Although there is some legislative and policy provision for environmental flows, these are limited and have been implemented in an ad hoc manner. The minimum ecological flows instituted by the DGA, for example, are based on a restrictive hydrological model, which fails to account for social or cultural water needs, or for the interdependence of surface water flows with groundwater. Further, the power of the DGA to set minimum ecological flows applies only to the granting of new water rights, even though water had already been largely allocated to private users when the process began. Meanwhile, the courts continue to regularize historical water uses without considering the availability of water and without any sort of prospective planning. The minimum environmental flows set by the Environmental Impact Assessment Service are similarly restrictive, applying only to prospective major projects, while the vast majority of water rights in Chile have been allocated (free of charge) without any consideration of the interests of the environment, or social and cultural interests. Aside from the obligation to set minimum flows, and consistent with the minimal public approach to water regulation in Chile, there is very little policy guidance on how these flows are managed and protected by the DGA, the Service, or private water user associations once they are established.
Nor are the significant legal rights and values of Indigenous peoples incorporated in the determination or management of environmental flows in Chilean law and policy. If anything, Chilean water law frameworks disincentivize non-extractive environmental or cultural water uses by charging fees for non-use where holders of water rights wish to leave water in-stream. Indigenous peoples’ ‘complex waterscapes’ of social, cultural, spiritual, environmental, and economic interestsFootnote 243 are reflected in legislative protection of ancestral water rights (at least in the north of Chile, but arguably more broadly) and a Fund that exists for the allocation of water rights elsewhere. Environmental flows are not a substitute for substantive water rights for Indigenous peoples for consumptive, productive or economic purposes, but should be implemented alongside existing mechanisms that fund the recognition and allocation of water rights for Indigenous peoples in Chile.
We argue that the Chilean government should strive towards a comprehensive minimum flow regime in Chile, which protects environmental or ecological water qualities to support ecosystem health, and takes into account Indigenous rights and interests. There are multiple legal reasons why the government should do so. Chilean institutions have in the past been prepared to rely on implied regulatory powers, and Chilean courts have supported them in doing so, emphasizing the important role that public authorities have to play in protecting the environmental qualities of waterways. Our review of Chilean legal decisions has demonstrated that the Supreme Court is prepared to uphold the provision of minimum environmental flows, pointing to the institutional obligation to manage the environment in the public interest and the constitutional right to a healthy environment, despite the impact on other water users.
The role that the Chilean government should take in environmental water management is inherent, in our view, in the characterization of waters as ‘national goods for public use’. In this context, the public interest encompasses not only the use of water for industrial or commercial purposes and human consumption, but also extends to ensuring healthy ecosystems and their preservation for future generations.Footnote 244 It is also consistent with public authorities’ obligations to protect biodiversity and the environment under Articles 41 and 42 of the Environmental Law and a range of regulatory imperatives in the Water Code. The Water Code requires the DGA to consider the rights of ‘third parties’ when granting new water rights,Footnote 245 which could include harm or impact on ecosystems, thus implying a duty imposed on the water authority to take into account the need for in-stream flows in its decision making.Footnote 246 Most significantly, the duty to protect the environmental quality of rivers and develop an effective environmental flow regime is also a constitutional mandate. Article 19(8) of the Constitution protects the right to a clean and healthy environment, and states explicitly that ‘the law may establish specific restrictions on certain rights or freedoms in order to protect the environment’. Environmental water governance should not be left to private water user associations, when it is a constitutional imperative and a matter of public interest.
There are also clear legal reasons why the Chilean institutions should plan for and include Indigenous peoples to ‘build legitimacy’Footnote 247 in the implementation and management of environmental flows. Chile has ratified ILO Convention 169, with its protection of Indigenous territorial rights to natural resources. In the Chilean constitutional system, international human rights treaties are, at least in theory, ‘self-executing’,Footnote 248 meaning that the growing international consensus around the right to water, environmental rights, Indigenous rights, and even the rights of nature, may provide opportunities to influence local reform in Chile.Footnote 249
In terms of the grant of new water rights, there is nothing to prevent either the DGA or the Environmental Impact Assessment Service from revising their approach to setting environmental flow requirements in a more holistic manner, by taking into account ecosystem health, and current and prospective Indigenous water uses and values. The Service, we recall, is not legally bound by the current DGA limits for minimum ecological flows,Footnote 250 and could in fact enhance the protection of freshwater ecosystems by taking into account other elements that might not be considered as part of the DGA's methodology. As the Supreme Court has emphasized, government institutions should use their powers to conduct an adequate and effective minimum flow regime, in line with their obligations under the Constitution to uphold the right to a clean and healthy environment and various domestic laws. Nor is there anything to prevent the institutions from working together with Indigenous peoples in the determination and management of environmental flows; again, the government should do this in line with its commitments under ILO Convention 169.
Where existing water users, including Indigenous communities, already hold water rights, and wish to leave those water rights in-stream for conservation, spiritual or cultural purposes, it would be relatively straightforward to allow them to do so, and to plan for this use within environmental flow regimes. Users who leave river flows in-stream for environmental or cultural purposes should be exempt from paying fines for ‘non-use’ and, to promote certainty, this exemption should be prescribed by law.
We acknowledge that for Chile to move towards a holistic environmental flow regime would require significant public investment, and probably legislative reform.Footnote 251 Water regulation in Chile is generally contentious, because of the quantity and range of interests in Chile's rivers, including those of productive users.Footnote 252 In catchments where water rights are already fully or over-allocated, some form of water recovery would be needed, and buying back rights is an expensive prospect. Gomez and co-authors estimated in 2014 that the cost of buying back water for environmental flows and pollution-dilution in the Maipo River would be USD 1.9 million.Footnote 253 Nevertheless, they underline the need for Chilean policy makers to consider the social benefits of environmental water more fully, and argue that buying back rights is a more efficient way to manage pollution than other pollution-reduction alternatives.Footnote 254
Any sort of compulsory redistribution of water to the environment would have an impact on water rights that have already been allocated, which means that the government would need to amend Article 129 bis 1 to remove the express restriction of minimum environmental flows to the granting of new water rights. This may require a constitutional change, or an amendment to the protection of water rights as property under Article 19(24) of the Constitution, requiring a two-thirds majority in the Senate.Footnote 255 Given Chile's fraught history of water reform and entrenched water interests, such a drastic reform is unrealistic, although further research may suggest other legal avenues for transformative change.
6. CONCLUSION
Water resources in Chile are under increasing pressure and the available quantity and quality of water is likely to decrease further as populations grow, development intensifies, and climate change advances.Footnote 256 This will continue to have major implications for the natural world as well as for humans, in terms of water security, health, prosperity, wellbeing, and the likelihood of more frequent and intense water conflicts.Footnote 257 There remain major challenges for Chile in protecting the environmental state of its freshwater ecosystems in a way that fairly reflects social and cultural relationships with and interests in water. There is growing public concern and conflict around the role of the market-based model underpinning the Water Code and the ability of existing institutions to address the serious environmental problems Chile faces.
In this article we have assessed the legal and policy framework for environmental flows in Chile, and found it to be inadequate and in need of change. We have made a case for a more holistic environmental flows regime in Chile, and for government institutions to plan prospectively for and administer a comprehensive environmental flow regime. We recognize that in the context of finite water resources, safeguarding environmental flows and including a flow of water for Indigenous use – potentially requiring the redirection of water away from consumptive, economic purposes – may be costly and politically unpalatable. However, until in-stream uses are recognized by Chile's water regime and protected by the legal framework, those who seek conservation of in-stream flows will be placed in a position of conflict with those who benefit from their absence.
During this time of social uprising around neoliberal politics and the distribution of property rights, the Chilean government should consider the balance between constitutionally protected private property and other constitutional environmental, social and cultural rights. At the same time, the government should pay attention to the unresolved constitutional demands of Indigenous peoples, because:
there are some limited gains to be achieved, in terms of uncovering an historical debt with Indigenous People, and at the same time give some hope(s) to the possibility of achieving a different, non-western non-liberal, constitutional arrangement. The new constitution for Chile needs to make sense of the geographical location we live in and the plurality of its inhabitants. This avenue could also open up the space for a conversation of alternative legalities after 500 years of forceful assimilation.Footnote 258
The challenge for Chile is to establish and operate a minimum environmental flow regime to protect the conservation of a flow of water necessary to maintain healthy aquatic ecosystems and reflect Indigenous custodianship for and rights to water resources, in a way that applies to existing water users as well as future applicants for water rights. This is especially important, because if Chilean institutions fail to plan effectively for minimum environmental flows, they may undermine the potential for Chilean rivers to support any water use (including economic) in the future.
Many would argue that the socio-political dynamics are too entrenched in Chile, and institutions too path-dependent, for any sort of transformative change. However, Chile is experiencing an unprecedented social change of constitutional scale, which highlights the ongoing need to consider issues of fairness and resilience in water rights and regulation, including adequate provision for the environment and Indigenous peoples.
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