By Javiera Martinez
Chile faces one of the worst water scarcity crises in recent years (1). One of the main causes is mining activity in its territory. There is massive extraction of water by transnational and national mining companies (2). Inequality in access to water in Chile is extremely high because of inequality in the distribution of water rights. There is a close relationship between water scarcity and the presence of mining activity in the territories. This situation directly affects the community of El Melón.
The community of El Melón, made up of about 11,000 inhabitants, has been affected by Anglo American’s activities for years. Anglo American, based in London, has one of its three Chilean operations in El Melón, Nogales. Since 2015, the inhabitants of the commune have not had constant access to drinking water (3). As a consequence, they have had to take action to defend their human right to water. During the COVID-19 pandemic, the inhabitants have not had one of the vital elements to protect themselves from the infection. The Municipality of Nogales, through cistern trucks, delivers water to the population. However, mining activity, which requires a lot of water, has not stopped. This is because Anglo American owns 119 litres per second of water rights, equivalent to 13% of the consumption rights of the entire population. While the inhabitants of El Melón fear catching the infection, Anglo American continues to exploit the territories, seemingly without reflecting on its consequences. The region has been declared an Extreme Water Scarcity Zone by the Chilean government.
The inhabitants have been in constant resistance against the company. In 2019 they had to take over one of the wells where Anglo American draws water (4), as a desperate measure, because many homes did not have water to supply themselves. Due to the growing need, the organized community filed an appeal against Anglo American (5). Ximena Gallardo, a member of the community’s Environmental Group, led the process. Their main argument was that the overexploitation of the water for mining activities was causing severe water shortage in the town. In an unprecedented ruling, the Supreme Court accepted the protection appeal and ruled in favour of the community.
The Chilean Supreme Court argued that everyone has the right to access to water, and that this right must particularly be protected in the case of rural communities such as the population of El Melón. However, the ruling was not against Anglo American, it was against the State of Chile. The Judicial Branch ordered the Municipality of Nogales, where the El Melón community is located, to carry out the necessary actions to guarantee the community’s access to water at a rate of at least 100 litres per person per day (6).
Although this is an advance in the understanding of the human right to water in a country that does not recognize it constitutionally, the Supreme Court leaves Anglo American completely unpunished for years of negative impacts on the community, the degradation of the ecosystem and the overexploitation of this vital element for life. The information presented by the community argued that the company extracts almost three times the water required by the community. In addition, since 2015 there has been continuous conflict over water. The company has been aware of this conflict since then, but has not given up on overdrawing water for its operations. As a consequence, what the company has done, in summary, has been the violation of the constitutional right to life and physical and psychological integrity of all members of the community.
The Supreme Court has defended the company, arguing that, on the one hand, the water shortage is a consequence of the huge decrease in rainfall in the region, and on the other hand, the company has voluntarily done everything possible to restore water for the community. Finally, the ruling determines that the company has not acted illegally. Therefore, it leaves the company unpunished for the impacts on people’s lives and the environment.
It is clear to see that this is a matter of corporate impunity, since the State of Chile has not filed charges against the company. The community is not protected from future overexploitation of water by the company or by other transnational companies active in the national territory. Anglo American has caused conflicts in the three territories of the country where it has mining operations. It has been involved in similar conflicts in communities in Colombia and Brazil. Let us not forget that the company is currently facing a lawsuit over the possible poisoning of more than 100,000 children and women in Zambia (7). To what extent will companies that violate fundamental and natural rights be left unpunished? Moving towards an international treaty that regulates business obligations on human rights is both necessary and urgent.
References accessed on 12 February 2021