Chilean Supreme Court rules in favour of the Caimanes Community

by Javiera Martinez

On 6 May 2020, for the first time, the Caimanes Community in Chile witnessed a toxic cloud over its territory (1). The toxic cloud comes from the “El Mauro” tailing dams, owned by Antofagasta Minerals’ Minera Los Pelambres (Los Pelambres Mining). The inhabitants of Caimanes took actions to protect their health and to demand their right to live in an environment free of pollution (2). They therefore filed an appeal for protection against Los Pelambres Mining. The main argument of the appeal was “The toxic cloud violates the physical integrity of the people, as well as their right to live in a clean environment”. On 17 May 2021, the Chilean Supreme Court ruled in favour of the community, and as a consequence the State must analyse and investigate the cloud and its pollution over Caimanes (3). 

The conflict between Caimanes and Antofagasta Minerals began at least 20 years ago. However, there has been no progress for the well-being of the population. Currently, Antofagasta Minerals faces three judicial cases in the Chilean justice system. First, about the expansion of the Complementary Infrastructure project (INCO). The conflict is over the fact that the project did not consider the participation of the people of Caimanes even though they are directly affected by it, because the town is in the mine’s area of influence. Currently, the appeal is in the Supreme Court. Second, the community filed an appeal in the 16th Tribunal of Santiago, about the psychological and social damages that the peoples are facing due to the impact of the mining operations. Third, the case about the toxic cloud in the Supreme Court: the decision of the Supreme Court has been that the State institutions must investigate where the cloud comes from, and they must analyse the composition of the cloud and whether the pollution is over the legal limit. 

The Annual General Meeting (AGM) of Antofagasta plc (owner of Antofagasta Minerals) is held every year in London because the company trades its shares on the London Stock Exchange. This year, the AGM was held on 12 May, online. During the AGM, London Mining Network, an organization which works against extractivism and for socio-environmental justice in solidarity with communities around the world affected by mining companies based in London, raised the demands and questions from the Caimanes Community to Antofagasta Minerals. The main concerns of the Caimanes people are about the three judicial cases that the community took against Minera Los Pelambres. Despite the terrible impacts on the community and the importance of the three cases, the Chairman of Antofagasta plc, Jean-Paul Luksic, evaded the questions. As in previous years, he failed to answer the questions and instead stated that there are different perspectives on what is happening in Caimanes. His responses (4) to questions about the company’s failure to consider the Caimanes community in the process of citizen participation and about the toxic cloud that threatens the population or the psychosocial damages that people experience, were along the lines that the company takes a different view on what is happening in Caimanes, that the company is governed by the established norms and that the dialogue with the community has been fruitful.

It is relevant to ask, if the dialogue has been so fruitful, as Jean-Paul Luksic suggests, why does the Caimanes community continue to file lawsuits against Antofagasta Minerals to protect their lives? Why do Antofagasta Minerals and its president Jean-Paul Luksic not take responsibility for the impacts of Minera Los Pelambres in the town of Caimanes, since there are studies that verify the psychosocial damage that people face? Why do Antofagasta Minerals excuse themselves from following environmental regulations, given that the pollution studies are presented by themselves or by companies that they hire themselves? 

The Supreme Court ruling is a historic ruling, in favour of the Caimanes community. The people of Caimanes have directly witnessed and suffered the impacts of Antofagasta Minerals and it is time for the company to take responsibility for these disastrous impacts. But it is also time that the Chilean justice system opens its eyes to the impacts suffered by hundreds of communities nationwide due to mining, which dries up and pollutes them every day.

The results of the recent plebiscite, which chose the representatives who will draft the new constitution in Chile, give hope for socio-environmental justice. The composition of the body has a marked tendency towards this. The demands for the protection of the territories, the right to water and the need to move towards a post-extractivist system are among the principal elements  of the struggle of those who are leading this process. The new constitution is expected to generate structural changes that help move towards a system based on the common good, which recognizes the rights of nature and the right to live in a truly healthy and pollution-free environment. As for the regulations for extractive companies, they must be considered. The new constitution is expected to create a structure that more strictly regulates the actions of companies such as Antofagasta Minerals.