Agua Mineral Chusmiza lawsuit (re Chile)
|Indigenous Aymara and Atacama communities challenged the right of the company Agua Mineral Chusmiza to bottle and sell water from a source on their ancestral lands. The communities cited International Labour Organization Convention 169 and the Chilean Indigenous Peoples' Act which grants special protection to indigenous communities' water resources. The company's argument relied on the private license it had received to extract the water. The Supreme Court ruled in favour of the plaintiffs, recognising for the first time the application of ILO Convention 169 and adopted a wide interpretation of community land.|
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The indigenous Aymara and Atacama communities of Chusmiza and Usmagama, in the semi-arid Andean foothills of northern Chile, challenged the right of the company Agua Mineral Chusmiza SAIC to bottle and sell water from a source under their ancestral lands. The communities alleged that the company had illegally deprived them of their lands and water sources, and that their rights set out in International Labour Organization (ILO) Convention 169 (Indigenous and Tribal Peoples Convention) were violated. The company argued that the water for which it had registered property rights was not within the territories of the communities, and therefore not protected by the Chilean Indigenous Peoples’ Act (Ley Indígena), which grants special protection to indigenous communities’ water resources. The company maintained that the communities’ access to water existed only because it let them use the water.
The local court ruled in favour of the communities in August 2006. It based its decision on the communities’ right to register their use of the water source under the Chilean Water Code, and the Chilean Indigenous Peoples’ Act. The court ruled that communities such as these may have a legally recognised right to water through ancestral use of the land and water sources, notwithstanding the company’s formal land ownership. The court awarded a flow of nine litres per second to the communities, and one litre per second to the company. In April 2008, the company appealed this decision and the appeals court upheld the lower court ruling. It stressed in particular in its finding that the communities had used the water source since time immemorial.
The company then appealed to the Chilean Supreme Court. Its arguments relied on the private licence to extract water that it had been awarded, and its ownership of land from which the water was being extracted. The communities again relied on the Indigenous Peoples’ Law, as well as on ILO Convention 169.
In November 2009, the Supreme Court decided in favour of the indigenous communities, granting them a right to part of the flow of water in question. The Supreme Court accepted the co-existent rights of both the communities under the Indigenous Peoples’ Act, and also the company under the Water Code, on the basis that the communities’ right to exploit the water preceded the rights later granted to the company.
The Supreme Court recognised the application of the ILO Convention 169 for the first time since its ratification by Chile in September 2008, and adopted a wide interpretation of community land, thus overcoming the fact that the communities’ claim related to water sourced on the company’s own property. The Supreme Court confirmed that Chilean law recognises the ancestral water rights of the Aymara and Atacama communities over the water, and clarified the ability of the indigenous communities to register their water rights.
- [PDF] [ES] “Denuncia de la comunidad Aymara Chusmiza – Usmagama y sus miembros contra la República de Chile ante la Comisión interamericana de derechos humanos”, Observatorio de Derechos de los Pueblos Indígenas, 2010
- “The Chilean Supreme Court recognizes indigenous Aymara of Usmagama water use rights in the Chusmiza slope, located in the Tarapaca region”, Indigenous Peoples Issues & Resources, 2 Dec 2009
- “Chile’s Supreme Court upholds indigenous water use rights”, Santiago Times [Chile], 30 Nov 2009
- [ES] “Suprema aplica Convenio 169 y reconoce derechos de aguas ancestrales”, La Nación [Chile], 27 noviembre 2009
- [ES] “Histórica sentencia en Iquique a favor de comunidad aymara de Chuzmiza. Corte reconoce derechos ancestrales sobre las aguas”, Mapuexpress, 17 abril 2008
- Observatorio Ciudadano [Chile]:
- [ES] “Corte Suprema rechaza casación de empresa minera y concede aprovechamiento de aguas a comunidades indígenas”, en Mapuexpress, 26 noviembre 2009
- [ES] Corte Suprema, Santiago, Chile, Agua Mineral Chusmiza v. Comunidad Indígena de Chusmiza Usmagama 25 noviembre 2009