The protests that began in October 2019 triggered the political process to change the 1980 Constitution. Photo: Migrar Photo

Chile Referendum: Should Ecology Included in the Constitution?

Chile referendum to approve or reject the proposed new Chile Constitution is approaching by leaps and bounds. Amidst of the heated campaigns, the environmental content of the text stands out, which could mark a watershed moment in this South American country.

The consideration of the climate and ecological crisis, non-appropriable common goods such as water, and the creation of institutions such as the Nature Ombudsman are part of the constitutional gear.

In this light, we attempt to briefly explain everything you should know about the plebiscite, through the coverage of 5 journalists involved in the project “Climate Change and New Constitution”, who have closely followed this historic moment.

Massive demonstration in Chile in 2019, Plaza Baquedano – Photo Hugo Morales/Wikimedia Commons

While the effects of socio-environmental crises are being felt around the world, several countries are going through their own historic moments. This is the case in Chile, in South America, where citizens will vote this September 4 on whether to approve or reject the proposed new Constitution drafted by the Constitutional Convention.

In fact, of the total number of articles proposed by this Magna Carta, 98 are directly or indirectly related to the environment, and these are mentioned in 8 of the 10 chapters of the text, according to the NGO FIMA.

In other words, in addition to devoting an entire chapter to “Nature and the Environment”, the environmental content is transversal in the constitutional proposal. Therefore, it is not surprising that the first article of the text states that “Chile is a social and democratic State based on the rule of law. It is plurinational, intercultural, regional and ecological”.

Below, we summarize the main socio-environmental changes involved in the new constitution, based on the coverage of the 5 journalists who participated in the project “Climate Change and the New Constitution”, by Friedrich Ebert Stiftung (FES Chile) and Climate Tracker Latin America. Through articles and podcasts, they collected the voices of the constitutional assembly members, scientists, lawyers, and environmental defenders, amongst others, discussing Chile’s present and future.

Climate and ecological crisis in referendum

The constitutional proposal explicitly places Chile in the current planetary scenario. It incorporates a series of environmental principles (article 128), such as progressiveness, precautionary, preventive, environmental justice, intergenerational solidarity, responsibility and just climate action.

It also establishes that the Chilean State has the responsibility to prevent, adapt to and mitigate the risks, vulnerabilities and effects caused by the climate and ecological crisis (article 129). To this end, it must promote dialogue, cooperation and international solidarity.

Thus, through these and other complementary articles, the constitutional proposal would promote more public policies, new institutions, and more spaces for citizen climate action.

To get there, diverse voices were woven together during a highly energized process which, as some say, “will not be repeated.”

Read more (in Spanish):

Protest demanding a new Chile constitution

Chile nature, common goods, and a paradigm shift

The new constitutional text makes a series of recognitions, starting with the interdependence of individuals and peoples with nature. It also establishes that the Chilean State must promote good living or the buen vivir Latin American concept (article 8), something that reflects the legacy of native nations, such as the Mapuche people.  

In addition, the proposed text incorporates natural common goods (instead of “natural resources”), understood as the elements or components of nature, over which the Chilean State has a special duty of custody (article 134). As such “common goods” it refers to the territorial sea and its seabed; beaches; water, glaciers and wetlands; geothermal fields; air and atmosphere; high mountains; protected areas and native forests; subsoil, and others that may be declared as such.

It also adds that several of these goods are non-appropriable, such as water in all its states, air, territorial sea and beaches, among others that are so recognized by international law and national legislation.

This would even have implications for the way in which we visit or relate to ecosystems and wilderness areas. This is because the new Constitution alludes to the right of responsible access to nature, such as mountains, rivers, beaches, among others (article 107). If the proposal is approved, norms such as this could become law in a country that has historically privileged private property.

Another aspect that was taken up by several citizen demands was the recognition of the rights of nature (article 134), which seeks to promote respect for its existence, regeneration, maintenance and restoration of its functions and dynamic equilibrium.

Solar Power Plant: Sol de Loa, located in Antofagasta, Chile
Source: Highly Innovative Fuels. Solar Power Plant: Sol de Loa, located in Antofagasta, Chile. installation of 800 thousand photovoltaic modules, it will be located on an area of 509 hectares and will have a capacity of 330 MW DC.

It also considers animals as subjects of special protection (article 131), recognizing their sentience and their right to a life free from mistreatment. It is important to note, that this would not imply the prohibition of eating meat, as misinformation that has been circulating in social networks claims. What it does establish is the duty of the State to protect biodiversity, conservation, preservation, and restoration of the habitat of wild native species.

In addition, the text includes the [human] environmental rights (article 148) to a healthy environment; to water and sanitation; to clean air; to informed participation in environmental matters; and to access to information and environmental justice.

This contrasts with the current Chilean Constitution, which was established in 1980 during the dictatorship of Augusto Pinochet. Although it establishes only the right to live in a pollution-free environment (which at the time was considered progressive), this has not materialized in practice, as the so-called “sacrifice zones” attest.

Read more (in Spanish):

Water, a special case in the referendum

There is no doubt that water has become one of the major concerns of citizens in Chile, especially due to the serious water crisis affecting a significant part of the territory. This multidimensional problem, marked by phenomena such as drought and water scarcity, has reflected not only the importance of conserving ecosystems to ensure the hydrological cycle, but also the need to overcome the current deficient water management.

In response, the proposal devotes a complete space to this common good through the “Water Statute” (articles 140 – 144), in addition to including it in other parts of the constitutional framework.

Thus, the new Magna Carta positions water as a right and a non-appropriable common good, creates a new institutional framework with the National Water Agency and other entities such as the Basin Councils. It also makes a radical change, moving from the questioned “water use rights” to “use authorizations”.

Read and listen more (in Spanish):

Nature and ecosystems in Chile – Photo credit Paula Díaz Levi/Climate Tracker.

Democracy and environmental justice

Socio-environmental conflicts have been unleashed throughout Chile. To address them, the constitutional proposal creates the Nature Ombudsman or Defensoría de la Naturaleza (articles 148-150), an autonomous institution that will be responsible for the protection of environmental and nature rights. Its mission will consist of informing, preventing and overseeing causes, as well as providing legal advice to communities affected by economic activities. It will also be decentralized as regional ombudsman’s offices.

If the conflict escalates, the matter would be taken to the environmental courts (tribunales ambientales), whose purpose is to resolve environmental controversies within their jurisdiction. Currently, there are three in all of Chile, but the proposed Constitution establishes that there will be at least one environmental court for each region of the country (article 333). In other words, the number would increase from three to 16, generating a substantive change in this matter. Although this norm has received both praise and criticism, it responds to a long-standing citizen demand for decentralized resolution of conflicts in their territories.

Read more (in Spanish):

Won’t somebody please think of the economy?

It is common for large economic activities to conflict with the protection of nature, especially when it comes to extractive, intensive industries with high socio-environmental impact, such as conventional agriculture, mining, among others.

In fact, one sector that has attracted special attention is mining. The constitutional text includes the “Statute of Minerals” (articles 145-147), which would imply significant changes in the regulation of this activity, starting with the granting of authorizations (until now known as concessions) of a finite and non-renewable nature. It also excludes all mining activity in glaciers and protected areas, for reasons of hydrographic protection. Although the content is brief and “confusing” for some, others assure that it opens the possibility of having another type of industry that is more responsible with nature and the territories.

mining will be affected by the proposed chle referendum
Mining (reference image) -Photo de Vlad Chețan/Pexels

On the other hand, the text elaborated by the Convention establishes that the Chilean State shall participate in the economy to fulfill its constitutional purposes and shall encourage – among other things – innovation, local markets, short circuits and the circular economy (article 182). It also mentions the duty to regulate and promote waste management, reduction and recovery (Article 133). If these and other regulations are implemented, some say they could also lay the foundations for a future circular economy and even move towards the longed-for concept of “zero waste”.

Against this backdrop, many argue that the “ecological” Constitution creates new opportunities to promote other economic models that follow sustainability criteria. In this way, the economic risks associated with the climate and ecological crisis could be reduced and even promote investment in businesses that follow these guidelines. It would also promote the transition of those businesses that will become obsolete. However, there is reticence and uncertainty in some market sectors.

This is a topic that could be discussed at length, but it is undoubtedly one of the major priorities of the 21st century.

Read more (in Spanish):

Will Chile have an ecological Constitution? The answer will be known next September 4 and in the times to come, when the citizens will decide whether to opt for the proposed changes, or if they prefer to keep the fundamental charter in force since the 80s.

Paula Diaz
Climate Tracker's Latin America Journalism Mentor, Paula is also a science and environmental journalist who loves animals, especially “non-charismatic” species. Passionate about biodiversity and oriental dance. Lives in Santiago, Chile. Also speaks German.