Introduction
Almost 13 percent of Chile’s population self-identified as “Indigenous” in the 2017 census, or 2,185,792 individuals (Instituto Nacional de Estadísticas Chile, 2018, p. 16). National legislation recognizes ten Indigenous Peoples (albeit by defining them as “ethnicities”): Aymara, Chango, Colla, Diaguita, Kawashkar o Alacalufe, Likan Antai (previously called Atacameños), Mapuche (the most populous), Quechua, Rapa Nui, and Yagán o Yámana (Article 1, paragraph 2 of the so-called Indigenous Law, Ley Indígena, Law 19.253 of 1993, as modified to include the Diaguita people in 2006 by Law 20,117 and the Chango people in 2020 by Law 21,273).
The majority of Indigenous individuals live in urban settings, and while poverty among Indigenous Peoples has slowly decreased in recent decades, the unemployment rates remain higher than the national average (Ministerio de Desarrollo Social, 2022). This is probably due to the widespread discrimination suffered by Indigenous Peoples throughout Chile (Briones & Lepe-Carrión, Reference Briones and Lepe-Carrión2023; Molina, Reference Molina, Yáñez and Aylwin2007).
Since the Conquista, Indigenous Peoples’ lands, and their access to natural resources, have been dramatically reduced. Nowadays, the few preserved or restored Indigenous lands are constantly challenged by the neoliberal economic priorities pursued by the Chilean state. These include, among other things, the construction of hydroelectric plants (Anaya, Reference Anaya2009; Rosti, Reference Rosti and Lenzerini2008), especially in the south (Aylwin & Silva, Reference Aylwin and Silva2014); the aggressive extractivist agenda (Silva Neriz, Reference Silva Neriz2013; Toledo Llancaqueo, Reference Toledo Llancaqueo2006), principally in the north (Marimán Quemenado, Reference Marimán Quemenado2011); the massive exploitation of forest resources (Silva Neriz, Reference Silva Neriz2013; Stavenhagen, Reference Stavenhagen2003); and the intense salmon farming in coastal areas (Aylwin & Silva, Reference Aylwin and Silva2014; Soluri, Reference Soluri2011).
In recent years, some positive trends have emerged, including an official state apology that (then) President Bachelet offered to the Mapuche people in 2017 for the “errors and the horrors” committed or tolerated by Chile throughout its history. However, the election of (former) President Piñera (his second mandate, 2018–2022) had another dramatic effect on Indigenous policies (Didier et al., Reference Didier, Aywin, Silva and Guerra2019). The nationwide protests that took place in Chile starting in October 2019 relate to broad unequal access to public resources (education, justice, public transport, health services, etc.) that continue to heavily affect Indigenous Peoples too.
In July 2021, the first Constituent Assembly (the so-called Constitutional Convention, Convención Constitucional) started working on the new Chilean Magna Carta. The Assembly was formed by 155 delegates – all elected by the Chileans – out of which seventeen seats were reserved for Indigenous Peoples in accordance with the percentages of the 2017 census. This resulted in seven seats for the Mapuche elected representatives, two for Aymara, and one for each of the other eight Indigenous Peoples (Chango, Colla, Diaguita, Kawashkar/Alacalufe, Likan Antai, Quechua, Rapa Nui, and Yagán/Yámana) (El Ciudadano, 2020). Moreover, the first president of the Constituent Assembly, Elisa Loncón Antileo, was an Indigenous academic and Mapuche woman.Footnote 1
A constitutional text was drafted between 2021 and 2022 and included a wide array of Indigenous rights (50 provisions of 380), with references to their pre-existence, their rights to self-determination, autonomy, independent institutions, justice systems, participation, consultation, culture, and free, prior, and informed consent; also included were references to their rights to natural resources, territories, and land (Convención Constitucional, 2022b). The proposal was rejected, likely due to an inappropriate communication strategy as well as conservative propaganda, which argued that the constitutional changes would undermine the legal foundations of the Chilean state (Velásquez Loaiza, Reference Velásquez Loaiza2022).
A second text was prepared from June 7 to November 7, 2023, by a constitutional council (Consejo Constitucional) that was elected in May with poor Indigenous representation (Proceso Constitucional, 2023a). This proposal included only three articles on Indigenous Peoples and rights: on their recognition, their international individual and collective rights, and interculturality; on mechanisms to promote their political participation; and on local rights at the regional and municipal levels (Proceso Constitucional, 2023b). Hence, land rights were not included. Nevertheless, this text was also rejected at the referendum held on December 17, 2023 (Sanhueza, Reference Sanhueza2023). Against this background, this chapter analyzes the process of dispossession faced by Indigenous Peoples in relation to their traditional lands, how they have contested the titles to ownership and possession of such territories, and the outcomes of their litigation strategy both in the north and in the south of Chile in recent decades. This chapter confirms the consensus in other chapters in this book: dispossession has been followed by processes for recognizing and reclaiming land rights, but implementation has been problematic. In addition, the chapter identifies how litigation in national courts has created an opportunity to safeguard land rights, at least at the jurisprudential level.
Processes for Dispossessing Indigenous Peoples of their Lands
The independence and the foundation of the Chilean state are officially dated as 1818 and 1810, respectively. However, the territory that forms the modern Chilean state was occupied and colonized by Spaniards during different periods. For instance, the areas covering the current towns of Arica, Iquique, Antofagasta, Calama, and Pozo Almonte in the north, and where the Aymara and Lika Antai/Atacameño Indigenous Peoples have been living for centuries, were annexed to Chile only after the so-called Pacific Wars of 1879–1884 (Gudermann, Reference Gudermann, Gudermann, Foester and Vergara2003). In the south, the fierce resistance of the Mapuche led to the signing of a number of bilateral treaties between their leaders and the colonizers.Footnote 2 Notwithstanding that these treaties de facto governed the territories south of the Bío-Bío river until the Civil War of 1859 (Bengoa, Reference Bengoa2000), the occupation of Indigenous lands started well before. For instance, the 1,600 Indigenous Peoples living in the Araucanía region were (immensely) outnumbered by the arrival of about 14,000 new settlers in the mid-nineteenth century (Aylwin, Reference Aylwin1995). Such a high concentration of non-Indigenous Peoples justified the first state acts to regulate both the colonization and the occupancy of these territories (Aylwin, Reference Aylwin1995).
In 1883, the so-called Peace of Araucanía (Pacificación de la Araucanía) ended two years of military occupancy in the region, and marked the beginning of the arbitrary confinement of the Mapuche peoples onto reserves (Reducciones) or other lodgings (Bengoa, Reference Bengoa2000; Rosti, Reference Rosti and Lenzerini2008). The concept of individual property rights was unknown to Mapuche at that time (Nesti, Reference Nesti2002). Overall, the original Mapuche territory was reduced by 95 percent (Rosti, Reference Rosti and Lenzerini2008). In addition, other state initiatives, such as granting land concessions, attracting foreign settlers “in good health” to farm the land, creating new villages, and adopting ad hoc legislation legitimizing the new property titles, resulted in a further “colonization” of traditional Mapuche lands in the current Region of Araucanía (Aylwin, Reference Aylwin1995). Mapuche organizations were set up in the early 1900s, but they did not make any significant gains in the return of their lands (Bengoa, Reference Bengoa2000). A further 25 percent of Mapuche territory was “absorbed” before the agrarian reforms of the 1960s by non-Indigenous settlers that first unlawfully occupied the land, and then requested (and obtained) the titling for these territories (Bengoa, Reference Bengoa2000).
Chile has a strong tradition of legal positivism, which constrains the expression of (Indigenous) customary law. Despite centuries of dispossession, Indigenous Peoples often retain their own laws, or, for instance, what the Mapuche call Az Mapu, “the law of the land.” It is important to note that the term “law” is derived from Western values, understood by Mapuche as “state” or wingkas (non-Mapuche) law. Az Mapu refers to the group of norms and ways of relating that regulate Mapuche peoples and lands (Cloud, Reference Cloud2010). Az Mapu is intimately linked to the Mapuche cosmo-vision of a profound spiritual conception of equilibrium and harmony with the surrounding environment, and embedded in Mapuzungun (or Mapuche language), as Az Mapu is transmitted orally (Cloud, Reference Cloud2010).
On Easter Island, the dispossession of the lands of Rapa Nui Indigenous Peoples – and their dehumanization through slavery – started during the nineteenth century. The Rapa Nui decreased from 2,000 to 111 people between 1864 and 1877 (Rochna Ramirez, Reference Rochna Ramirez1996). In 1868, the French merchant Jean Baptiste Onésime Dutroux-Bornier (better known as “Pitopito”) “acquired” vast areas of land from the Rapa Nui by unlawful means, concluding contracts with children and taking advantage of the fact the Rapa Nui did not realize they were giving away their lands forever (Rochna Ramirez, Reference Rochna Ramirez1996). In 1888, the Agreement of Wills – signed by the navy captain Policarpo Toro in representation of Chile and the Rapa Nui king Atamu Tekena – marked the annexation of the Easter Island to Chile (Chartier et al., Reference Chartier, Chirif and Tomas2011). In principle, the Rapa Nui should have remained the owners of their ancestral lands (Marimán Quemenado, Reference Marimán Quemenado2011), but the Chilean state took control and gave concessions to the Rapa Nui’s lands without any consideration of the Rapa Nui claims (Rochna Ramirez, Reference Rochna Ramirez1996).
In 1933, the island was ultimately registered as terra nullius and formed part of the state lands of Chile in accordance with the then Article 590 of the Civil Code (Chartier et al., Reference Chartier, Chirif and Tomas2011; Marimán Quemenado, Reference Marimán Quemenado2011). In 2012, a Rapa Nui family contested the validity of this registration before the Supreme Court. Nevertheless, the Supreme Court validated that title as well as other property titles enacted in the past that ignored the Rapa Nui’s land titling (Silva Neriz, Reference Silva Neriz2013). The Rapa Nui were kept in semi-slavery conditions until the adoption of the so-called Easter Law (Ley Pascua) 16.441 in 1967 (Chartier et al., Reference Chartier, Chirif and Tomas2011); thereafter, a national park over the island (called Hanga Roa) was established in the 1980s (Rochna Ramirez, Reference Rochna Ramirez1996). The park is currently administered by the National Forestry Corporation (Corporación Nacional Forestal – CONAF) (Marimán Quemenado, Reference Marimán Quemenado2012), but without the participation of any Rapa Nui (Cloud, Reference Cloud2013). Therefore, 13 percent of Easter Island is held by the Rapa Nui people, 17 percent is in the hands of private owners, and 70 percent is state land (Aylwin & Silva, Reference Aylwin and Silva2014).
Only the agrarian reform of the 1960s brought some changes into Indigenous land titling. In particular, Law 17.729 of 1972 ruled a system of land restitutions (Article 17) and established an Institute for Indigenous Development (Articles 34 and ff.).Footnote 3 However, after the 1973 military golpe (coup), Law Decree 2,568 of 1979 modified the system of land restitution that became more arbitrary (Articles 9–26).Footnote 4 Moreover, the dictatorship introduced a system of land “normalization,” which was realized through revocations or expropriations and reallocation (via reselling) of land titles via unscrupulous transactions – for example, by concluding contracts with illiterate or poorly literate individuals, including Indigenous Peoples. This transformed all the lands that had been given back during the agrarian reform into private lands by the early 1980s (Toledo Llancaqueo, Reference Toledo Llancaqueo2006, p. 56). Finally, the Water Code (Decree 1,122 of 1981)Footnote 5 legitimized the privatization and appropriation of watercourses, depriving Indigenous Peoples of water access (see more on this further below).
Once democracy was restored in 1989, the then presidential candidate and future first democratically elected president after the dictatorship, Patricio Aylwin, signed the so-called (first) Agreement of Nueva Imperial with some Indigenous representatives. Among other things, he promised to promote a constitutional reform that would include Indigenous Peoples and to recognize their socio-economic and cultural rights. Despite several attempts, the constitutional recognition never followed, and as mentioned, the recent attempts of the constitutional reforms failed too. Under Aylwin’s mandate, the abovementioned “Indigenous Law” was eventually adopted in 1993.
The (Mis)Recognition of Indigenous Land Rights
Overview
The Chilean state has not protected Indigenous Peoples from dispossession. This failure has ultimately resulted in a number of socio-environmental conflicts. Since the late 1990s, Indigenous Peoples and their organizations have used different instruments to denounce this gap, such as peaceful marches or protests, as well as some frustration-led land occupations. However, the Chilean state has often (if not always) replied in an austere way, such as by ordering the police to repress the direct actionsFootnote 6 or by using the military justice system under the anti-terrorism law – an inheritance of the dictatorshipFootnote 7 – instead of the civil or criminal standard of justice. Furthermore, as mentioned, economic interests are prioritized over Indigenous land claims and rights.Footnote 8
The Chilean economy is largely based on the export of raw materials (Equipo OCMAL, 2015), including some of the world’s largest copper deposits, and is a leading exporter of lithium, iodine, molybdenum, silver (Prieto, Reference Prieto2015; Yáñez & Molina, Reference Yañez and Molina2008), and gold. All of these minerals are concentrated in the lands of the northern Indigenous Diaguita and Collas peoples (Molina, Reference Molina, Yáñez and Aylwin2007, Reference Molina and Durston2013). At the time of writing (December 2023), Chile had forty-nine ongoing mining conflicts, and was ranked fourth for the number of such conflicts in Latin America (Equipo OCMAL, 2023).
Chile has ratified the majority of the international human rights treaties, endorsed both the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the 2016 American Declaration of the Rights of Indigenous Peoples (ADRIP), and, most importantly, it ratified the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention of 1989 in 2008 (hereafter, C169).Footnote 9 The C169 entered into force on September 15, 2009.
The Indigenous Law
At the national level, Indigenous rights continue to be governed by the Indigenous Law (Law 19,253 of 1993), which might be changed by future constitutional reforms. The Indigenous Law has done the following:
recognized the ten “ethnicities” (etnias) (i.e., Indigenous Peoples) of Chile (Article 1);
established Indigenous “communities” and how they can be created (Articles 9–10);
acknowledged Indigenous lands, also those registered in various statutes during the nineteenth and twentieth centuries (Articles 12–19);
established a fund for the redistribution of land and water resources to Indigenous Peoples (Articles 20–22) and another fund to finance programs for Indigenous economic development (Articles 23–27);
recognized Indigenous cultural rights (Articles 28–31);
introduced intercultural and bilingual education (Articles 32–33);
recognized some (albeit limited) political participation rights (Articles 34–35);
created the National Corporation of Indigenous Development (Corporación Nacional de Desarrollo Indígena, CONADI), which is a public body charged with, among other things, promoting the national Indigenous policy and agenda, as well as implementing the Indigenous Law (Articles 38–40);
established the CONADI steering body (National Council, Consejo Nacional) formed by seventeen members, of which eight must be elected by Indigenous communities (Articles 41–44); and,
included a special protection for watercourses of the Indigenous Aymara and Likan Antai/Atacameño peoples, although without infringing on third-party “water rights”“ of the same sources (Article 64; see further below).
However, the Indigenous Law contains many flaws, such as:
referencing “ethnicities” and not Indigenous Peoples, thus ignoring their ancestral history and cultures;
requiring the registration of Indigenous organizations at CONADI without respecting their own governance, and fueling divisions and conflicts (Instituto de Estudios Indígenas, 2003);
establishing a very complicated system of land redistribution, resulting in many delays, causing unsuccessful investments, and creating overall discontent (Carruthers & Rodriguez, Reference Carruthers and Rodriguez2009);
providing CONADI with an excessive concentration of power, which is easy to manipulate, as reflected in the notorious case of the Ralco-Endesa hydroelectric plant (Nesti, Reference Nesti2002);
focusing on rural areas without considering its application in urban contexts, where most Indigenous Peoples live (Vergara et al., Reference Vergara, Gundermann and Foerster2006); and,
failing to prevent forced relocation and guarantee rights to natural resources (Instituto de Estudios Indígenas, 2003), with the abovementioned exclusion for the Aymara and Likan Antai/Atacameño peoples from water sources.
Importantly, the key problem, as expressed across most of the chapters in this book, is the overall lack of implementation of this law (Becerra Valdivia, Reference Becerra Valdivia, Cammarata and Rosti2023; Instituto Nacional de Derechos Humanos, 2013).
The land redistribution provided for in the Indigenous Law requires a procedure that has created a lot of confusion and even a speculative increase in prices for land acquisitions over the years (Stavenhagen, Reference Stavenhagen2003). Most of the lands returned to Indigenous Peoples were marginal (Anaya, Reference Anaya2009), with more than 40 percent of lands returned between 2000 and 2005 barely fertile (Toledo Llancaqueo, Reference Toledo Llancaqueo2007). From 2009 until 2018, CONADI acquired only 125,000 hectares through the land fund (Didier et al., Reference Didier, Aywin, Silva and Guerra2019). In 2010, CONADI spent only one-third of the allocated $158 million (USD). Two-thirds of that year’s budget had to be returned due to incomplete land purchase contracts (Marimán Quemenado, Reference Marimán Quemenado2011). This caused a decrease in CONADI’s budgets in the following years (Aylwin & Silva, Reference Aylwin and Silva2014; Didier et al., Reference Didier, Aywin, Silva and Guerra2019; Marimán Quemenado, Reference Marimán Quemenado2012).
Other Laws and Norms
The “Law on Marine Coastal Spaces of Native Peoples,” also known as “Ley Lafkenche,” which refers to those Mapuche peoples of the coast,Footnote 10 regulates the establishment of coastal marine space(s) for those Indigenous Peoples who have customarily used them (Article 3). This law has been poorly implemented (Aylwin & Silva, Reference Aylwin and Silva2014; Kaempfe & Ready, Reference Kaempfe and Ready2011). Currently, Indigenous Peoples, especially women, have been particularly active in claiming the creation of their marine spaces according to this law. However, of more than 100 requests only 13 percent have been completed due to long and bureaucratic procedures (Arce et al., Reference Arce, Aylwin, Didier, Crisóstomo and Vargas2023).
Indigenous land rights are also often infringed upon by laws that favor the Chilean resource extraction model. These laws were adopted under the dictatorship but were never amended afterwards. They have been widely used, especially after the return of the democracy. These are the Law on Mining Concession (Law 18,097 of 1982, Ley Orgánica Constitucional sobre Concesiones Mineras); the Mining Code (Código de Minería; Law 18,248 of 1983 and following amendments); and Article 19.24, paragraph 6 of the constitution that recognizes the exclusive, inalienable, and imprescriptible property right of the state to mining resources, as well as state power to grant concessions to private entities for both exploration and exploitation purposes (Yáñez & Molina, Reference Yañez and Molina2008) through a presidential decree (Article 8 of the Mining Code), thus giving a high level of discretion to the executive.
In addition, legislation enacted during the dictatorship that is still in force favors foreign investors who have the right to compete on equal footing with national enterprises (Legislative Decree 600 of 1974); foresees a customs and fiscal system that promotes the mining sector in the north (Legislative Decree 889 of 1975); and regulates the fiscal system on economic activities in Chile (Law 18,293 of 1984), which suffers from a huge tax evasion. Furthermore, Chile used to have the lowest tax rate in the whole of Latin America until the adoption of Law 20,026 of 2005 on Mining Royalties, which, however, covers only the royalties of copper mining (Yáñez & Molina, Reference Yañez and Molina2008).
National water legislation inherited from Pinochet’s dictatorship (Article 19, paragraph 24 of the Chilean constitution) created private “water rights” to water resources, which could be traded (derecho de aprovechamiento de aguas) once recorded in the national register, in accordance with Article 6 of the Water Code. This has caused a massive privatization of water resources that heavily impacts Indigenous Peoples, especially in the north. After long debates, Law 20,411 of 2010 excluded the possibility to register new water rights in northern and central Chile, although without infringing on those rights that were already recorded.
Finally, the recent legislation on the Right to Consultation of Indigenous Peoples (Decree 66 of 2013) and the Environmental Impact Assessment System (Decree 40 of 2013) have, ironically, further undermined Indigenous Peoples’ voice on economic activities on their lands. There is no obligation to fully comply with a consultation process (Tomaselli, Reference Tomaselli, Wright and Tomaselli2019).
Litigation for Land Rights
Indigenous Peoples have used litigation to advance and safeguard their land rights. Four specific cases are analyzed in this section, one in the north of Chile, and three in the south. Each of these demonstrate how national courts have become – in the last decades – the avenue to secure land rights, notwithstanding the unfavorable national legislative framework.
The El Morro Case: Northern Chile
In the north, the so-called El Morro case involved the Indigenous Diaguita community of Huasco Altinos (Comunidad Agrícola Diaguita de los Huasco Altinos). The community filed an Amparo proceeding for the protection of its constitutional rightsFootnote 11 before the Court of Appeal of Antofagasta against the Atacama regional branch of the National Environmental Commission (Comisión Nacional del Medio Ambiente, CONAMA). CONAMA had approved the open-pit gold mining project “El Morro” in March 2011; covering 2,463 hectares, the project area spanned a significant part of Diaguita (registered) territory (Corte de Apelaciones de Antofagasta, 2011). The Court of Appeal found this project adversely impacted the Diaguita’s land rights (recognized under Article 64 of the Indigenous Law), as well as their rights to culture and way of life as a consequence of forced relocation (per Article 16 of the C169) (Corte de Apelaciones de Antofagasta, 2011). Their right to consultation in accordance with C169, Articles 6, 7, 15, and 16.2, was also infringed (Corte de Apelaciones de Antofagasta, 2011). The Court declared CONAMA’s authorization as null and void, thereby blocking the project and safeguarding Indigenous Diaguita land (Corte de Apelaciones de Antofagasta, 2011). The Chilean Supreme Court upheld this decision in April 2012 (Corte Suprema, 2012).
Despite these rulings, this case did not end here. CONAMA subsequently approved the mining project after these decisions. The Diaguita filed another lawsuit directly with the Supreme Court, which ultimately declared null and void the second of CONAMA’s authorizations (Corte Suprema, 2014).Footnote 12
Decisions from Southern Chile
In the south, three cases illustrate the impact of Indigenous strategic litigation. The first involved a traditional healer (Machi), Francisca Linconao Huircapan, against a logging company (Sociedad Palermo Itda) that had unlawfully extended its activities into Mapuche lands. The Court ruled that in accordance with Articles 13 and 14 of C169, Mapuche were to be protected against invasive logging activities that had seriously damaged sacred Mapuche sites (menocos), affecting herb collection and the gathering of traditional medicines (Corte de Apelaciones de Temuco, 2009). The Supreme Court confirmed the judgment of the Court of Appeal of Temuco in November 2009 (Corte Suprema, 2009).
In the second case, Mapuche Huilliche Pepiukelen had their lands adversely affected by the salmon farming activities of the Los Fiordos SA company, in the region of Puerto Montt. The Court of Appeal of Puerto Montt eventually condemned the salmon farming company for contaminating a natural lake in Mapuche Huilliche Pepiukelen territory, and ruled that access to water is one of the essential parts of Indigenous land rights in accordance with Article 13, paragraph 2 of C169 (Corte de Apelaciones de Puerto Montt, 2010). The Supreme Court upheld this decision in September 2010 (Corte Suprema, 2010).
The third case, heard by the Court of Appeal of Valdivia, and brought by the Mapuche Lanco-Panguipulli communities against the Region of Los Lagos’ CONAMA office, involved the authorization of a dump in a ceremonial area. No consultation was carried out, and because of this, the Court declared the authorization null and void (per Articles 6 and 7 of C169). Importantly, the Court reasoned that Indigenous Peoples’ enjoyment of their lands for ceremony was an important component of land rights (Corte de Apelaciones de Valdivia, 2010). The Court also cited Article 25 of the UNDRIP to stress the importance of supporting Indigenous Peoples’ spiritual relationships with their territories.Footnote 13 The Supreme Court confirmed this lower court decision in January 2011 (Corte Suprema, 2011).
Conclusions
For Chile’s ten recognized Indigenous Peoples, the nation’s history has been characterized by dispossession, encroachment, and conflict. Indigenous Laws, like the Az Mapu, of the Mapuche, are ignored. There are significant pressures on Indigenous lands. Unique among Latin American countries, there is no constitutional recognition of Indigenous rights in Chile. The recent failed constitutional reforms would have strengthened Indigenous rights in a revitalized constitution. The future for Indigenous land rights, largely entrenched in the problematic Indigenous Law, remains uncertain.
The litigation strategy pursued by Chile’s Indigenous Peoples has been quite successful for safeguarding their land rights. The chapter presented four cases brought before the Chilean national courts, where Indigenous land rights – despite an unfavorable legislative framework – have ultimately been protected due to the Indigenous parties’ arguments and the courts’ use of international standards of Indigenous rights (the C169 and UNDRIP). The courts have embraced a broad conceptualization of Indigenous land rights, recognizing these rights are intimately linked with the right to access water, the rights to culture and way of life, the right to traditional medicine, and the preservation of Indigenous ceremonial areas due to the spiritual relationship that Indigenous Peoples enjoy with their lands. The courts’ rulings are becoming more aligned with the Indigenous customary conceptions of land, such as the Mapuche’s Az Mapu, and the balance it sustains between people and nature.
Chile’s national courts have matured on Indigenous rights issues, taking account of international standards and norms. However, the independence of the judiciary is fragile, being heavily influenced at times by the executive. Now, after two referendums that rejected a new and very progressive constitutional text in 2022 and a rather conservative proposal in 2023, it remains unclear how to move beyond Pinochet’s unequal constitution from 1980. In the meantime, despite many other implementation challenges, Indigenous Peoples in Chile may at least enjoy some jurisprudential protection of their lands and rights.
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