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Padre Nelson Barrientos worries that a big mining project will only exacerbate disparity in the Huasco River valley. (Roger LeMoyne/Michener-Deacon Fellowship/Report on Business magazine)
Padre Nelson Barrientos worries that a big mining project will only exacerbate disparity in the Huasco River valley. (Roger LeMoyne/Michener-Deacon Fellowship/Report on Business magazine)

Behind Barrick's Pascua-Lama meltdown in the Atacama desert Add to ...

In 2008, during the Socialist Party leader Michele Bachelet’s first term as president, she oversaw the ratification of the International Labour Organization’s Convention 169, which mandates consultation with indigenous people on all developments that affect them. While the accord is not well-known internationally, Chile’s indigenous people took it to heart, and they began to explore how they might use it to press their own government for rights.

The courts were the obvious route. Thanks to a wave of judicial activism, the indigenous cases found a far more positive reception than they might have even a few years earlier. The change was paralleled on the environmental front, with new legislation and new monitoring agencies. Left-leaning judges were making unprecedented rulings, counteracting what they saw as excessively pro-business policy from government. The legal landscape changed quickly: A series of dramatic rulings over the last eight years has paralyzed an estimated $50-billion worth of infrastructure and industrial projects.

Much of that change was driven by the work of a young lawyer named Lorenzo Soto. He graduated from law school in 1996 with a keen interest in human rights—but the country’s recent history had produced a glut of experts in the field. Instead, he seized on the largely unexplored field of environmental law, and began to carve out a new expertise. He built up a practice, working from a messy office in Santiago, using a bulldog style at odds with Chile’s mannerly society. Working for a percentage of any payout, he aimed big—outlandishly big, in the opinion of many Chileans. In 2004, for example, he won a major settlement for a pair of indigenous sisters whose ancestral land was flooded for a dam; and in 2011, he succeeded in stopping the expansion of a $5-billion thermal power plant, on the grounds that it imperilled the livelihood of a small group of fishers.

At a congressional hearing in 2012, Soto chanced to meet the farmer Maglene Campillay. Six years earlier, just as Barrick received its environmental approvals, Chile recognized the Diaguita as an indigenous people. With that status, Campillay and 3,000 other Diaguita people living near Pascua-Lama were subscribed in the new national approach to native rights.

On the day Soto met Campillay, she and other Diaguita were taking their complaints about Barrick’s effect on local water to Congress. But Soto was startled to learn that the Diaguita had not gone to court to try to stop the mine. They told him the project already had a licence and had been under way for years—they did not believe they could derail it. Nonsense, he replied, and he launched a legal challenge that the great majority of local Diaguita groups joined—with the understanding he would try to stop the mine, or if he could not do that, get them a settlement.

Soto went first to the regional court in Copiapó, and initially he met with a cool reception. But then came the January, 2013, collapse of part of the canal system at Pascua-Lama, which drew the scrutiny of Chile’s newly created Superintendencia del Medio Ambiente, or Environmental Superintendency. It laid 25 separate charges, including ones for faulty construction of the perimeter channels, and failure to both build an adequate water treatment system and to fulfill the mine’s glacier monitoring plan. (It also imposed $16 million in fines, which were later overturned for procedural reasons.) Barrick, defending itself against the charges, insisted that there had been no contamination, but did not contest the accusation that it had begun to move earth before the water system was completed.

Armed with the environmental charges, Soto took the case back to the regional court. In the valley, people were convinced that the mining company had poisoned their water, causing their animals to die and their crops to wither. The court found no evidence of this, but it didn’t matter: Barrick had indisputably violated the rules, and that would no longer be tolerated. The then-president, Sebastian Piñera, told reporters that he had looked at the rulings and the environmental permits and asked himself, “How could they not anticipate all these problems? You don’t leave things for tomorrow.” Such an attitude was not acceptable. “Pascua-Lama must comply with the requirements we’ve set forth and cannot resume work until it does.” In its April, 2013, decision, the regional court ordered the suspension of the mine operation.

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