Two Steps Forward, Four Steps Back

Landau 8.May 2018.

For over 20 years, natural and environmental preservationists have been defending the habitat of the Humboldt Penguin, the ecosystem “La Higuera-Isla Chañaral”, and have demanded the creation of a marine protection area. Last year, the Coquimbo Regional Government and later the Chilean Federal Government rejected Andes Iron Corporation’s mining and port project, thus setting an example for sustainable development in the La Higuera Region. On March 5th-6 days before the change of government the committee of ministers unanimously voted for the marine protection area “Pinguino de Humboldt. As a consequence, President Bachelet enacted the required decree. The Bachelet government however, left the size and demarcation of the protection area open. This was certainly not a breakthrough, but definitely a step in the right direction.

The Chilean Supreme Court has now rejected the case against the Cruz Grande port project intended by Corporation Compania Minera del Pacifico S.A. (CMP). Shortly thereafter, the First Environmental Court in Antofagasta sustained Andes Iron Corporation’s suit against the rejection of its Dominga mining and port projects (see open letter from 28. April). These verdicts endanger the existence of many people in the La Higuera Region and an ecosystem of global status.

How will this proceed? The environmental protectionists have filed suit in an international court against the approval of the Cruz Grande project, as well as in the Chilean Supreme Court against the verdict from the court in Antofagasta. The indignation in Chile is so intense, especially with respect to the verdict in Antofagasta (governmental capriciousness endangers the principles of a nation of law), that the environmental protectionists are receiving much support, and more and more people are backing the protests.



Open Letter from Nancy Duman, Sphenisco

28. April 2018

Yesterday on April 27, 2018 the First Environmental Court in Antofagasta announced its verdict with respect to the suit brought by the Andes Iron Corporation. Andes Iron had sued against SEA’s (the agency responsible for reviewing an intended project’s environmental compatibility) and the Committee of Ministers’ rejection of its Dominga mining and port projects. In detail, the judges stated:

1.  the claim brought by Andes Iron against SEA and the Committee of Ministers is sustained.

2.  the assessment 1.146 on 13. October 2017 of the Acting Director of SEA in his function as Acting Secretary of the Committee of Ministers is annulled.

3.  the decision Nr. 08/2018 of the Committee of Ministers is also annulled.

4.  further, Resolution Nr. 0025 from 14. March 2017 (Final Decision on the Environmental Compatibility – RCA) of the Environmental Compatibility Commission (COEVA) is annulled.

5.  it is to be mandated, that the Process of the Environmental Compatibility Review be remanded back to the Phase after the ICE (Final Report of the Environmental Compatibility Review), so that a new vote - now a legitimate one – can take place at the Environmental Compatibility Commission of the Coquimbo Region (COEVA).

The (new) Environmental Minister commented on the verdict as follows: “As the government, we want to ensure that the procedure will now conform to the law. Paying deference to the law, the constitutionality, is guaranteed for all citizens. Therefore the verdict is very clear when it states that the process must be remanded back to where a new vote from the Environmental Compatibility Commission of the Coquimbo Region (COEVA) can take place. And that so – literally translated – this vote can be a legitimate one.”

We see this entirely differently. If one takes the entire evaluation procedure into consideration, it becomes clear that – quite to the contrary – this verdict is irresponsible, not in accordance with the law and a shame for the entire country of Chile.

If in fact the intent of the verdict was to establish legal conformity and constitutionality, then the Process of the Environmental Review would not have been remanded to the Phase after the ICE (Final Report) and a new vote allowed, without the entire environmental review process in and of itself first having been reexamined. With the current decision, the environmental court opens the way for the very governmental despotism that it claims to fight against. The same applies to the new Environmental Ministry which, as a party to the case, did not lodge an appeal to the highest court’s verdict.

This becomes obvious through the letter that the employees of SEA (Coquimbo Region) wrote last year to their director, and also from the document regarding the concluded disciplinary process in which 12 civil servants witnessed to the fact that the ICE (Final Report) was elaborated in Santiago and did not take the regional assessment into account, and that the Surrogate Director of the Regional Environmental Agency was sent to sign the report, so that the insufficient “Final Report” could be incorporated into the environmental compatibility review.

As a reminder: prior to this report, the SEA had accepted the observations of CONAF (The Chilean Environmental Protection Agency), as indicated in Adenda 3, and demanded that the responsible governmental agencies state their opinions. When the ICE was due however, for then-unexplainable reasons (we now know why) a fourth Adenda was requested and prefaced by a report which completely differed from the previous one, and in which CONAF’s position was explicitly not acknowledged and its claims completely removed from the evaluation.

Since then, there is evidence that during the time that Pablo Badenier was  Environmental Minister, someone from the federal level intervened. In the document regarding the entire evaluation, this fact was witnessed in writing by 12 different officials. We hope that this document still exists and has not since been destroyed.

We recall: just a few days after the decision in the region by which the project was remanded, Badenier resigned, allegedly to support the presidential campaign of Carolina Goic. Shortly thereafter, the Federal Director of SEA, Jorge Troncoso and his entire team resigned, the very people that had prepared the report for the Committee of Ministers.

This alone attests to the fact that a grave mistake was made and a breach of governmental regulations committed, a breach sufficient to damage the governmental institutions of Chile and the country’s reputation throughout the world. We do not believe that a lack of information existed. 

One makes a serious error when one imposes a new regional vote (remanded to a specific phase in the court’s decision-making process). In this way, a project can be approved without having to provide the necessary information to substantiate it, because the government either cannot do so or does not want to attempt it, and instead wants to remove harmful proof to the contrary; thus, the government does not want to adhere to its own legal requirements, the necessary basis of an approval process, i.e., orderly evaluation of the ramifications of such a project. In other words, quite to the contrary: it is to be assumed that this environmental monument of global importance will be destroyed, and the future of the Humboldt Penguin species with it.

Translated by Erich Greiner