'better early than late'

In Chile we heard of a case brought by indigenous communities against a geothermal energy investigation to take place on indigenous territories. The third chamber of the Court of Appeal of Santiago received three applications filed by three different communities: Huenchullán; Consejo de Pueblos Atacameños; and comunidad Manquilef Hueche regarding an exploration permit granted by Ministry of Energy in the regions of Araucanía and Antofagasta.

 The Court of Appeal unanimously rejected the lawsuits on the grounds of extemporaneousness in the filing of this constitutional action. Moreover, the Court explained that “there has been no illegal or arbitrary action by the Minister of Energy” because the said permit meets a legal and duly founded procedure. In regards of the action been extemporaneous the Court of Appeal noted that at this stage of the geothermal examination, the permit will only allows the party involve to recognize, inquire or ascertain the existence of energy if any, in the subsoil. Therefore, it is not possible to know if the project will affect communities or individuals. However the Court extended to say that a ‘consultation and participation’ of indigenous communities that may be affected by the project is necessary at a later stage - in compliance with Articles 6, 7 and 8 of the ILO Convention No 169.

Haven’t you heard of the expression ‘better early than late’? This is what did cross my mind while I was reading the case. You may also think of ‘the early bird catches the worm’ ie avoid losing time and recognize now that anything that happens in indigenous lands they need/must be consulted...full stop.

Chile is not strange to this type of cases -- conflicts over indigenous lands and the exploration and exploitation of their natural resources and moreover, referring to consultation and participation of indigenous peoples in decisions relating to this issue (see previous posts here and here). What is of curiosity is the fact that the Ministry of Energy is a body of the State and it should know better. The government should be an example of responsibilities and obligations pursuant ILO Convention No 169. Also Chile is a member of the United Nations Declaration on the rights of Indigenous People (UNDRIP) and although it is a non- binding resolution, it is a reaffirming piece that Chile has opted to follow.

Sources: Poder Judicial and Indigenous News.

ART AND HERITAGE DISPUTES - CALL FOR PAPERS

From Dr Valentina Valdi, a Marie Curie postdoctoral Fellow of the Faculty of Law at Maastricht Universit, we received an invitation for a conference on ‘Art and Heritage Disputes’ to be held at Maastricht University on 24-27 March 2013. The invitation is to everyone who is interested in participating, either presenting a paper or writing an article OR even both!

Abstract (up to 500 words) for consideration should be submitted by 1st December.

The publication reads as follows: “This Special Issue aims to identify, map and critically assess the number of art and heritage disputes which have arisen in the past decades. The return of cultural artifacts to their legitimate owners, the recovery of underwater cultural heritage, the governance of sites of outstanding and universal value, the protection and promotion of artistic expressions, and the protection of cultural sites in time of war are just some of the issues which have given rise to art and heritage related disputes.”

Themes that are considered include: 1) Cultural rights 2) Tangible cultural heritage 3) Intangible cultural heritage 4) Underwater cultural heritage 5) Art law 6) Dispute settlement mechanisms

For more info contact Dr Valentina Vadi at v.vadi@maastrichtuniversity.nl.