Can Justice See in the Dark and Does She Even Want to?

La Serena, Landau 21. March 2018.

JustitiaWe remember. Sphenisco and Chilean environmentalists continually pointed out the irregularities in the environmental review of the Dominga project (Andes Iron Corporation), and even demanded an investigative committee be formed because of it. The Parliament met this demand and investigated the irregularities, mistakes, and deficiencies in the review of the Dominga project. Our employee Nancy Duman testified at the investigative committee and summarized her comments as follows:

  1. The applicant has presented a project that does not meet the minimum requirements in order to be assessed.
  2. During the review process, observations of governmental organizations with environmental competence were ignored.
  3. The document provided, and its enhancements or addenda do not contain sufficient information in order to allow for a correct environmental sustainability review.
  4. SEA should therefore have suggested a rejection and not a consent.
  5. The vote of the Commission took place with all of these aspects having being presented.
  6. Academics and research about the meaning of the archipelago and the coastal area of La Higuera was not taken into consideration, the opinion of scientific experts was not called upon (see also report from 15. May 2017).

The following question is therefore legitimate:  what influence is responsible for these failures? Who exerted influence, so that the SEA (the agency responsible for reviewing environmental compatibility) recommended approval of the project, despite insufficient factual justification?

To the general surprise of all, last year the environmental committee of the Coquimbo Regional Government rejected the Dominga project with its port in Totoralillo Norte. The Andes Iron Corporation disagreed with this decision and turned to the Committee of Ministers in the Chilean government. After the council of ministers confirmed the regional government’s rejection of the project, Andes Iron initiated a suit against the rejection at the Chilean environmental court. The company claimed that the reason for the suit was that the rulings of the regional government and the council of ministers were irregular, that they were based upon political pressure being placed upon them and that these decisions were not in line with the results of the environmental review concluded by SEA (see also reports on this website from 09. March and 22. August 2017).

The case brought by Andes Iron will be tried at the new environmental court in Antofagasta. The attorneys representing the citizenry have been summoned to the court, but of course have no voting rights. This environmental court is not only new, it also appears to be taking new juristic paths. Three judges from the court went to the affected site. For three days in February, they visited the villages in the coastal community of La Higuera. They also visited the national Protection Area of the Humboldt Penguin, and spoke not only with authorities, but also with representatives of the fishers and the civilian community. Then they suggested, in a complete departure from standard procedure for an environmental court and to the general bewilderment of all, that the dispute be ended with a settlement, and demanded corresponding answers from the parties. The SEA (under the previous leadership) left it to the new leadership to answer, wrote however to the court that in their opinion a settlement is not possible or that such would be damaging to governmental institutions. The accused irregularities in the governmental approval process do not allow for a settlement to be reached in this case without damaging the credibility of the government. The new leadership of the SEA and the new Environmental Minister Marcela Cubillos agreed with this opinion. The court now has 30 days to announce its decision. The result of this proceeding at this point appears to be completely open.

W.K.

translated by Erich Greiner

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