The green promise of the new Chilean constitution

The “eco-constitution”, to be voted on September 4th, could put Chile at the forefront of climate action in Latin America

On September 4, Chile could radically change the course of its history. More than 15 million people will vote in a compulsory plebiscite to approve or reject the new constitution, which was written following the massive mobilizations of late 2019, known as the “estallido social” (social outburst).

If the “Approve” option wins, the country will finally turn the dark page of the dictatorship: although it officially ended in 1990, the current political, economic and social system is still anchored in Pinochet’s 1980 constitution.

But, furthermore, if the proposed constitution is approved it will create a set of norms, rights and duties that could make Chile an example of action against the climate and ecological crises. And this could drive a more significant change to the extractive economic model that has devastated Latin America and much of the developing world.

An urgent transformation

Chile is known for its abundant mineral resources (the largest copper and lithium reserves in the world), its numerous rivers, lakes and glaciers, and its bountiful seas that extend as far as Antarctica in the South and Easter Island in the West, more than 3,700 kilometres away from the coastline on the Pacific Ocean.

But Chile is also one of the most vulnerable countries to the impact of climate change. The latest report of the UN Intergovernmental Panel on Climate Change (IPCC), published in February 2022, warned that the country would be increasingly affected by drastic temperature increases, low rainfall, melting glaciers, and coastal erosion. The country will also suffer from more regular extreme events such as droughts, heatwaves, and droughts, and will be less naturally resilient to increasingly devastating natural disasters such as earthquakes, fires, and tsunamis.

Today, more than 8 million people suffer the effects of the “mega drought” that has hit the country since 2008. The government has decreed water shortages in over half of the country's 345 municipalities, and many of them have been in this condition for more than ten years in a row.

The lack of precipitation is particularly severe in the Central part of the country, where 80% of the population lives and where most agriculture is done. Some areas are experiencing a reduction in rainfall by over 70%, compared to the historical average. The scenario is even more critical in rural areas, where water rationing is already part of the new normal.

Thousands of small farmers have lost their animals and crops, and their quality of life has seriously dwindled due to difficulties to obtain drinking water. As if that weren't enough, the drought is also jeopardizing the country's hydropower production, deteriorating ecosystems and biodiversity, and pushing thousands of families to displace to the cities.

However, the water crisis is not the result of climate change alone; it is also due to a serious problem of distribution and access to water. Chile is the only country in the world where water is practically a private good. Although the 1980 Constitution declared national property and public use of water, the Water Code of the following year allowed the State to grant water use permits to private actors.

Many of these permits have been conceded in perpetuity, and are owned by a few families and companies that profit from this lucrative business. They receive these permits for free and then sell them and speculate on their value, like any other commodity. This allows them to have enough money and technology to capture water from increasingly deep and distant sources.

For this reason, amid the drought and with little control from the government, the few owners of these permits can continue to irrigate extensive crops or use large amounts of water for mining, while over 2,000 peasant communities rely on cistern trucks to survive as the rural aqueducts they used to run by themselves are dry, due to lack of rain and overexploitation.

What the new constitution proposes

Shortly after starting to work, the plenary of the Constitutional Convention — composed of 154 members popularly elected from gender-parity lists — declared a “state of climate and ecological emergency”, and raised the protection of the environment as one of its cross-cutting priorities.

The outcome is that after 9 months of debates, public hearings and long voting days, at least 50 of the 388 articles of the final draft of the constitution are related to environmental issues. Most of them were put forward by the "eco-constituents", a group of 30 members of the Convention that led the fight to lay the foundations of a country in greater harmony with nature in the new Magna Carta.

Many of these new norms have their roots in the progress made in other Latin American countries, such as the Ecuadorian Constitution of 2008, the first in the world to enshrine the rights of nature, or the Bolivian Constitution of 2009, which included some ancient indigenous concepts related to the environment, such as sum qamaña or Buen Vivir (good living), and established the fundamental right to a healthy environment.

In the proposed text of the new Constitution, Chile declares itself an ecological State and recognises the interdependence between human beings and nature as a fundamental value. This gives the State and society the duty to protect and respect the rights of nature and to address the ongoing climate and ecological crises.

In addition, the constitutional text enshrines as human rights the right to water, food, a healthy environment, clean air, and the right to the city and territory. And it also creates new instruments for environmental justice and democracy, such as the Office of the Ombudsman for Nature, the Basin Councils, mandatory consultation and consent of indigenous peoples before activities that may affect their territory, and the establishment of environmental courts in each of the country's 16 regions.

Another innovative aspect is the definition of “natural public goods”, which includes the territorial sea and the seabed, beaches, waters, glaciers, wetlands and high mountains, among others. The State will assume a special duty to preserve, conserve and, if needed, restore them.

Regarding water, the new Constitution includes a statute that prioritizes the exercise of the human right to water and the balance of ecosystems over any other use of this resource. To this end, it creates the National Water Agency, an autonomous body in charge of monitoring the actions of public and private actors in water matters. This agency will also be responsible for granting (and revoking) water use permits, which can only be temporary, shall not give rise to property rights or be traded, and shall include obligations for the conservation of water sources and basins.

A better future at risk?

The new Constitution has sparked optimism around the world. But only a few weeks ahead of the final referendum, the polls show increasing support for the option “Reject”, which could be 10 to 15% bigger than support for the “Approve” option. This is a disconcerting picture, considering that almost 6 million Chileans voted favourably to rewrite the Constitution and to elect members of the Constitutional Convention.

Certainly, it is easier for people to agree that a country needs change than to agree on how to achieve it. And, indeed, many norms of the new constitution are still far from reaching a consensus in public opinion. However, it is also clear that support for the “Reject” option has increased as a result of a disinformation campaign, full of fake news about the content of the new Constitution.

Scrapping the new Constitution in one fell swoop and maintaining the current one could be a costly choice for Chile. In addition to the risk of exploding into a new wave of protests and social unrest, the country would miss a historic opportunity to equip itself with the tools it needs to act in the face of climate and ecological crises. The mega-drought that is affecting almost half of the territory is a dire example of how urgent this is.

Passing the new Constitution is only the first step. Realizing the new environmental mandates will depend on a large number of reforms and legislation that must be approved and implemented for years, even for decades. But this is a decisive step that must be taken now before it is too late. And it is a big step whose effects will be certainly felt in the region and beyond.

***The original version of this article was published in Spanish by Democracia Abierta. You can read it here.