“Chile is a social and democratic state governed by the rule of law. It is plurinational, intercultural and ecological. It is constituted as a Republic of solidarity, it is a parity democracy and recognises as intrinsic and inalienable values the dignity, freedom, and substantive equality of human beings and their indissoluble relationship with nature.”
So begins the first article of the proposed new Chilean Constitution. From the outset, the text hints at the fundamental changes the country may undergo from 4 September this year if – and it is a big “if” – the draft is approved in a national referendum.
After almost a year of hard work, a total of 155 elected constitutional assembly members (equally represented by men and women) drafted a new document to replace the one written under the Augusto Pinochet dictatorship. The process is an unprecedented political and institutional response to the 2019 social upheaval.
The number of times the word “ecological” appears in the draft text of Chile's new constitution. The proposed document enshrines the human right to water, the rights of nature and just climate action
Environmental protection is one of the fundamental pillars of the new constitution. The University of Chile’s Constitutional Environmental Observatory has identified 50 environmental norms in the draft. Several feature in a dedicated chapter entitled “Environment and Nature”, but others are spread throughout the text, including in reference to fundamental rights.
“The new constitution takes on the climate and ecological crisis in a way that no other constitution in the world has done so far. Its approval would make Chile a country at the forefront, at least in legislative terms, in the fight against the global crisis,” says lawyer Ezio Costa, director of the NGO Fima. “In that sense it is a very significant step forward.”
The Constitutional Convention, as the assembly is known, has already approved the draft text and formally submitted it to President Gabriel Boric, who was elected in December 2021, backed by popular calls for a new constitution and a greener development model.
However, it faces huge hurdles before it can reconstitute Chile's legal landscape. Recent polls suggest it will be roundly rejected in the September vote. Analysts say its likely disapproval has more to do with the dipping popularity of Boric and his perceived personal association with the process.
The pillars of Chile’s new constitution
The 1980 Constitution did include something of an environmental innovation for its time in that Article 19 guarantees “the right to live in an environment free of pollution”.
The 2022 draft Constitution, however, is much more far-reaching and notes almost all the main prerequisites for a more sustainable and equitable world. They include the human right to water, intergenerational justice, living well (the indigenous Latin American concept of Buen Vivir), the rights of nature, and just climate action.
“We have determined that Nature has the right to have its existence respected and protected, to the regeneration, maintenance and restoration of natural cycles, ecosystems and biodiversity,” says assembly member Gloria Alvarado. “This is not only an ecological Constitution, it is socio-ecological, because we are part of nature and it is from this perspective that we have proposed and approved these norms.”
There are 17 references to the “ecological” in the text, from the “right to a healthy and ecologically balanced environment”, the obligation of the state to “adopt an ecologically responsible administration”, the protection of the “ecological function of land”, to the need to determine the “social and ecological function” of property.
For Costa, the Constitution establishes a series of norms that qualify it as ecological: The recognition of the climate and ecological crises; the inherent value of nature (expressed in the rights of nature and the natural commons); environmental human rights (to water, to a healthy environment and to participation and access to justice); and in the distribution of power in environmental decision-making.
The new constitution takes on the climate and ecological crisis in a way that no other constitution in the world has done so far
“Individuals and peoples are interdependent with nature and form an inseparable whole with it. The state recognises and promotes living well as a relationship of harmonious balance between people, nature and the organisation of society,” a proposed eighth article states.
The natural commons – a reimagining of natural resources that reflects nature’s value beyond quantifiable monetary terms – is also recognised as elements of nature for which the state “has a special duty of custody, in order to ensure the rights of nature and the interest of present and future generations”. The natural commons includes the sea, beaches, glaciers, wetlands, geothermal fields, air, atmosphere, high mountains, protected areas, native forests and the subsoil, among others.
Authorisations of use would permit activities on common land but they would not constitute property rights.
The Constitution also establishes Chile as a “regional” state, organised into autonomous communes, regions and indigenous autonomous territories. All are endowed with special environmental protection functions, such as land-use planning and integrated watershed management.
The transition to a new model
In mid-June, hundreds of residents of the towns of Quintero and Puchuncaví, both in the central Valparaíso region, were once again poisoned, suffering symptoms of vomiting, dizziness and headaches. The bay is known in Chile, a “sacrifice zone” – an area where human health and wellbeing is relegated to secondary importance in the face of “dirty” industries and power generation. For half a century, the population has coexisted with an industrial park that contains coal and gas-fired thermoelectric plants, an oil refinery and a copper smelter, among others.
Already in 2019, Chile’s Supreme Court ruled that the area constituted a serious violation of the right to live in a pollution-free environment, as recognised by the 1980 Constitution. It blamed companies and the state for massive poisoning. Three years later, history is repeating itself. Although no one has yet been held responsible for the latest episode.
According to Costa, the new Constitution establishes an idea of environmental justice that should eliminate sacrifice zones. “It also establishes a principle of fair climate action that should lead to the decarbonisation process and the energy transition process favouring places such as Quintero,” he said.
The new text also creates the figure of the Defensoría de la Naturaleza (Nature Ombudsman), which will oversee the obligations of the state and private companies towards nature under the Constitution.
This is a novel development because the autonomous body would be able to intervene in cases such as the sacrifice zones and would recognise the precautionary and preventive principles and those of progressiveness, environmental justice, intergenerational solidarity, responsibility and fair climate action that serve as legal tools.
Water in Chile’s new constitution
On the new Constitution addressing the issue of private water rights in Chile – one of the most hotly debated in the drafting process – constituent Carolina Vilches said: “It is the end of the ownership of water (...) the inequalities of power in water management will end. No more people taking water from water trucks while others irrigate their estates, reclaiming water for life and people.”
For more than a decade, Chile has been experiencing a mega-drought. The capital, Santiago, is currently preparing for water rationing. The legacy of the dictatorship weighs heavily on water management in that the 1980 constitution established it as a private good, generating speculation and a situation in which basins had more water rights than available water.
It is the end of the ownership of water ... the inequalities of power in water management will end
The new text establishes that the state protect water in all its states and that the human right to water and sanitation prevails. It mandates the creation of a National Water Agency, along with River Basin Councils responsible for administration on the basis of integrated management.
“This will allow us to address the drought from a socio-ecological, integral and watershed perspective, as has never happened before in Chile, where we have spent decades dealing with it through water scarcity decrees, granting millions in emergency funds for water trucks,” says Alvarado.
The Convention also defined a series of “transitional” rules, largely oriented around water. These include a six-month deadline for a diagnosis and evaluation of the country's water basins, especially those in crisis and where there has been excessive granting of rights. There is another 12-month deadline for the government to put a bill congress to create the National Water Agency. This body will be able to prioritise and redistribute water flows.
A one-year deadline was also established for the president to convene an “ecological transition commission”, charged with designing laws, decrees and public policies to implement the new environmental norms.
If the constitutional text is approved on 4 September, President Boric will sign it and it will immediately come into force.
However, the implementation of the new constitution will happen during a period of transition in which two parallel tracks operate. Existing institutions will need to adapt to the text and there will need to be legal changes needed to fully implement it, which will take several more years.
Approve vs Reject campaigns
Despite the promise of a new legal framework for water management and environmental protection, recent public opinion polls suggest the the new constitution will be rejected in a referendum. The scale of public opposition seems to mirror that of the government of Gabriel Boric, the young 36-year-old president who took office only last March and pledged to run a green government.
For sociologist Pamela Poo, the population’s growing environmental awareness, especially among youth, will play an important role in the campaign. “The same with water, people care and are aware of the lack of water, the drought and the effects of climate change, so there is also a growing environmental vote,” she says.
However, the campaign for the new constitution has been marred by misinformation about its scope. A few days ago, a well-known academic spread the false idea that the proposed new constitution led British company BP to ditch a US$60 billion green hydrogen project – without citing any verifiable source.
This and other situations led President Boric himself, when he received the text on 4 July, to call on citizens to “debate intensely on the scope of the text, not on falsehoods or catastrophic interpretations that are out of touch with reality”.