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Tuesday, January 10, 2023 11:55:21 AM
Frivolous_nuisance Colla_(group-2) lawsuit_against_lithium miners squashed
by Copiapo Appellate Court https://www-maray-cl.translate.goog/corte-de-copiapo-rechaza-recurso-de-proteccion-por-resoluciones-que-autorizan-explotacion-de-litio/?_x_tr_sl=es&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp January 5, 2023 possibly having future impact on similar lawsuits brought by gimme-gimme injuns to extort/blackmail legal lithium mining operations outside the sacred-bullsheet hunting/livestock-grazing/copulating/praying grounds all these phony actor Russian Inuit/Eskimo descendants claim they should be controlling (ie lording over) in Chile.
We at NewCo (LPI) Maricunga and our friendly Colla group-1 locals have previously smoked the peace pipe and are kosher on our mutually-agreed financial payoff royalty deal (to the locals) affecting our Stage 1 & 2 mining operations. As such we were not involved in Mrs Ercilia Ernestina Araya Altamirano (and Colla group 2 injuns) lawsuit against Salar de Maricunga SpA owned by Codelco who is victorious in this lawsuit and now eligible for financial damages from Mrs Ercilia who we are hoping next has herass nailed to the wall by Codelco.
This far-reaching appellate court decision is going to be used for reference in future junior lithium miner court cases and will almost assuredly be called up in the possible upcoming BYD & Grupo_Errázuriz lawsuits to have their 80,000mt LCE export quota licenses reinstated. This legal decision also gives validity to the Salar Blanco (Martin Borda) & SIMCO claims of additional/redundant legal precedence to mine lithium in Maricunga free from CEOL BS restrictions which in itself is happily kinda' golden for us.
The full English version of the appellate court decision follows below.
The Doctor
---------------------------
Appellate Court of Copiapó
Copiapó, January fifth, two thousand twenty-three (January 5, 2023).
IN VIEW OF:
On page 1, on October 29, two thousand twenty-two,
Mrs. Ercilia Ernestina Araya Altamirano, farmer and breeder, appeared on her own behalf and on behalf of the Colla Pai Ote Indigenous Community, legally registered with current legal status under No. 59 in the Registry of Indigenous Communities and Associations of the National Corporation for Indigenous Development, both domiciled for these purposes at
___21 de Mayo Street No. 5285,
___Copiapó,
___Atacama Region, Chile
and filed an appeal for protection against the Ministry of Mining, legally represented by Mrs. Marcela Hernando Pérez, by Minister Marcela Hernando Pérez, both domiciled at
___21 de Mayo Street No. 5285,
___Copiapó City,
___Atacama Region
and filed an appeal for protection against the Ministry of Mining, legally represented by Mrs. Marcela Hernando Pérez, by Minister Marcela Hernando Pérez, both domiciled at
___232 Amunátegui Street, 15th, 16th & 17th floors,
___Santiago, Chile
for the issuance of Resolution No. 2, of March 9, 2018, which "Approves the special operation contract (CEOL) for the exploration, exploitation and benefit of lithium deposits in the Salar de Maricunga, located in the Atacama region, subscribed between the State of Chile and the company Salar de Maricunga SpA" (editorial note: Salar de Maricunga SpA is a subsidiary of Codelco); and, by the issuance of Exempt Resolution No. 2.941, dated June 19, 2019, which "Approves the special contract for the operation of lithium deposits in the Salar de Maricunga and its surroundings, signed between the State of Chile and Sociedad Salar de Maricunga SpA, modifications that it indicates, and annexes", as such actions, which are qualified as illegal and arbitrary, violate the right to equality before the law enshrined in Article 19 No. 2 of the Political Constitution of the Republic.
In this regard, and preliminarily, she notes that the members of the community are mostly engaged in livestock and agriculture, selling their products. Most of them are breeders, ie people who produce goat cheese and other products, as well as transhumance (cattle driving) livestock, for whom water is not only a resource, but also something sacred, just like the land.
It adds that the community has real and effective territorial roots in the Atacama Region, and in particular in the Salar de Maricunga, as established in the study "Informe de ocupación territorial de la Comunidad Indígena Colla Pai Ote, Región de Atacama, to justify the application.
The document transcribed in the appeal refers in detail to the territory occupied by the Colla Pai Ote Community in economic and productive
activities, and in the permanent and temporary settlement. Then, she points out that on September 29 of this year, counselor Ariel León sent the plaintiff a WhatsApp audio message in which she indicated that she had something very important to talk about and together with a photograph of a brief from the State Defense Council, filed in the case filed in this Court under number 1036-2022.
She adds that later Ariel León informed her that the lawyer Hugo Castro Charles had called her to ask the Pai Ote community to participate in a lawsuit that she had initiated for the so-called "lithium bidding", taking part in it.
She claims that her advisor informs her that she was only able to read the file during the morning of September 29, and that the respective recourse for protection had been filed by the Colla Tata Inti Community of the town of Los Loros against the Ministry of Mining, for a special lithium operation contract (CEOL), by virtue of which Codelco created a public company subsidiary of the same, in charge of the exploration and exploitation of lithium in the Salar de Maricunga, called SpA Maricunga, which until that moment it was unaware of.
Having specified the above, it refers that all the clauses of the challenged resolutions affect them, highlighting the second, according to which the purpose of the contract is to authorize the contractor to develop exclusively all kinds of activities and exploration work, exploitation and benefit operations on the lithium substances located in the so-called "CEOL Area"; the third, referring to the term of the contract, with respect to which it is highlighted that the contract will come into effect on the Effective Date and will be extended until December thirty-first, two thousand fifty-seven (December 31, 2057) ; the fourth, fifth and sixth, referring to the CEOL Exploitation Area, the Project Exploitation Area and the Salar de Maricunga Area, respectively.
Thus, she argues, the lithium industry is intended to be developed in a sacred place for the community and its members, where very valuable and
important ancient ceremonies are held, where salt is located and used for purification and also for cattle to eat in order to get rid of parasites such as
yuta; and it is also a place where there are registered and proven transhumance (cattle driving) routes.
In this way, she indicates, there are environmental effects that must be consulted, but above all, and prior to the environmental aspect, other
different consultations are necessary due to the impact on the development priorities of the Pai Ote Community, as well as on our way of life, economic perspectives and other non-environmental effects, since the activities that we carry out in the territory will be profoundly affected if the resolutions in question are executed without due indigenous consultation.
She specifies that although at one time they were strongly opposed to any mining project, today they have taken a strategic position, after having
been persecuted by some companies. Continuously, it states that the appellant community did not become a party in the process corresponding to the appeal for protection role 1036-22 of this Court, so as not to be left with a secondary or accessory role as happened in a similar case, corresponding to role 25.142-2018 of the Supreme Court, in which it became a party as an intervener third party.
In addition, and on this same topic, she refers that the Colla Pai Ote Community is serious and respectful, so it would not file lawsuits covering the territory of other communities. She then states that the constitutional guarantee threatened, restricted and violated is equality before the law, recognized in Article 19 N° 2 of the Political Constitution of the Republic, with respect to which she points out that the disregard of the specificity of indigenous rights prevents effective equality, that is, that those who are equal are treated as equals and those who are different are treated as different.
Thus, indigenous rights have different standards of application to the indigenous peoples that make them up, so that the non-application of these special standards violates the right to equality before the law, as this denies that difference, and assimilates indigenous peoples and individuals into society, causing the cultural extinction of indigenous peoples.
It then points out that indigenous consultation is a mechanism motivated precisely by the right to equality, as a measure of positive discrimination, constituting a mechanism that implies reestablishing the equality that indigenous peoples materially lack.
For its part, it emphasizes that the legal duty of the State to consult with indigenous peoples when processing legislative and/or administrative
norms that affect them is an obligation recognized in Article 6 N° 1 of ILO (International Labour Organization) Convention N° 169, consultation that must be carried out in good faith, in a manner appropriate to the circumstances, through representative institutions and must be carried out with the aim of reaching an agreement or achieving the consent of the indigenous peoples regarding the appropriate measures.
It goes on to state that according to Article 7 No. 1 of ILO (International Labour Organization ) Convention No. 169, the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to control, as far as possible, their own economic, social and cultural development.
She then clarifies that this consultation does not refer to the environmental effects of specific projects, but is prior, and is related to the effects of the resolutions in question on the way of life of the peoples due to the imposition of a mining development plan through the CEOL, with respect
to the rest of the non-indigenous people.
In cases in which the State retains ownership of mineral or subsoil resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult the peoples concerned to determine whether and to what extent their interests
would be prejudiced before undertaking or authorizing any mining or extraction program, prospecting for or exploitation of resources existing on their lands. The peoples concerned shall, wherever possible, participate in the benefits derived from such activities, and shall receive fair compensation for any damage they may suffer as a result of such activities", a rule that is applicable in this case because lithium is State property and lithium prospecting or exploitation programs are authorized in the Salar de Maricunga.
Finally, in this regard, it relates that the institution of consultation with indigenous peoples is not a merely procedural matter and that its essential
requirements have been systematized and enriched by the jurisprudence of the supervisory bodies of the ILO (Geneva) and other authorized human
rights bodies, such as the Inter-American Court and the Special Rapporteur on the rights and freedoms of indigenous peoples, in the terms it develops.
Now, having specified the above, she points out that the illegality is determined by having omitted the right to indigenous consultation, in
circumstances that with the report prepared by the prominent geographer and post doctorate in Anthropology Raul Molina, and with the support of the Universidad Arturo Prat, it has become clear that the territory where the Salar de Maricunga is located is indigenous territory belonging to the Colla Pai Ote Indigenous Community, so the public bodies that issued the resolutions challenged in this appeal should have consulted the Colla Pai Ote Community on the matter as a first step.
In addition, the challenged resolutions suffer from nullity defects for having omitted prior consultation, which is a right of the native peoples,
declared in various articles of Convention 169, especially Articles 6, 7 and 15, already analyzed.
Then, regarding arbitrariness, it argues that the administrative processing and the issuance of these resolutions were not focused on the indigenous people who use and occupy the Salar de Maricunga, being known by the authorities involved, that the respective communities are normally settled in territories far from large cities, making the possibilities of connection by means of the following means very difficult technology such as cell phones and computers with internet, because there is no connectivity plan that includes these areas.
Thus, given the invasion of projects in their territory, and because handling a computer, connecting to the internet and being part of a webinar
meeting can be very complex, because their way of life is developed around the land and transhumance (cattle driving) not connected to a computer, a communication plan of public agencies with indigenous peoples is missing, because its absence contributes to the arbitrariness of the actions and omissions of the appellant.
Now, regarding the filing deadline, the community found out about the contested bids, due to the offer made by attorney Hugo Castro Charles,
transmitted to counsel Ariel León Bacian, to become a party to the 1036-2022 protection action. Ariel León read the file only on September 29, 2022, and on the same day she communicated by telephone with the plaintiff, explaining the implications and details of that arbitration. Thus, only on that day she learned of the challenged resolutions, so the appeal has been filed within the thirty-day term provided for in act number 94-2015, of the Supreme Court.
In addition, it should be noted that the members of the Pai Ote Indigenous Community mostly live in territories far from the city, settling in the sectors adjacent to the highlands, which is the place where they develop their way of life, so that the dissemination of information and the time it takes
them to learn the news, to decide what measures to take, and even the decision to sue, are much longer and different from the usual times
considered for the common citizens. This is why it is immensely necessary to consider the reality of the indigenous inhabitants of the territories in question, since the remoteness of their settlements, and for the rest of the communities and inhabitants of rural areas is the same and they must wait for the information to reach their territories, due to the distances, lack of connectivity of the area and lack of knowledge of some issues that must be handled thoroughly to understand what is proposed by the State, so the possibilities of the community members to be informed, definitely requires more time than ordinary and specific mechanisms that do have the reception due to the circumstances and the persons to be informed. She cites Gaspar Jenkins Peña y Lillo for this purpose. Universidad del Desarrollo, Chile. On the relaxation of the time limit for filing a writ of protection: Reflections from recent jurisprudence. Revista de Derecho Público No. 96 (2022). Pp. 21-41.
Likewise, it emphasizes that the challenged resolutions have a duration until the year 2057, according to the second clause of the CEOL, so that the violation of the right to equality before the law infringed upon the Pai Ote Community is continuous and permanent, so that the term does not expire, particularly if it is taken into account that we are not dealing with affectations of a patrimonial nature, but rather with aspects that relate to the effects on the way of life of an indigenous community protected by law and international treaties.
Then, it emphasizes the fact that the violation of the norm established for the execution of the indigenous consultation is not something new, but
rather it is a repetitive act that has been occurring for a long time, not only in the resolutions in question in this process, as has occurred in the cases it indicates.
Finally, she argues that, in accordance with the provisions of the Auto Agreement of the Honorable Supreme Court for the processing of the appeal of protection, this can be filed in the Court of Appeals of the place where the action or omission that is appealed has been committed, or in the Court of Appeals of the place where the action or omission has its effects; and, as the acts described have effects in the territory that is owned by indigenous ancestral and that includes the Salar de Maricunga, she concludes that This Court is competent to hear this appeal.
Thus, it requests that this appeal for protection be accepted, adopting the following measures:
1) Resolution No. 2 of March 9, 2018, of the Ministry of Mining, which "Approves the special operating contract for the exploration, exploitation and benefit of lithium deposits in the Salar de Maricunga, located in the Atacama region, signed between the State of Chile and the company
Salar de Maricunga SpA", and Exempt Resolution No. 2.941 of June 19, 2019, which "Approves the special contract for the operation of lithium
deposits in the Maricunga Salar, located in the Atacama region, signed between the State of Chile and the company Salar de Maricunga SpA".
Salar de Maricunga and its surroundings, signed between the State of Chile and the Company "Salar de Maricunga SpA", modifications indicated, and annexes";
2) To order the annulment of all resolutions, decrees, administrative acts and measures that depend on and are subsequent to the
aforementioned resolutions; 3) The respondent is ordered to have suitable mechanisms for communication, dissemination and permanent dialogue with the appellant in matters that affect it; 4) The respondent's actions and omissions are declared illegal and arbitrary for having omitted the indigenous consultation in the case in question. The following documents are attached: 1) Report of Territorial Occupation of the Colla Pai Ote Indigenous Community, Atacama Region, to justify the territorial request of the Pai Ote Community to the Ministry of National Assets and Conadi, made by Raúl Molina, Luis Pérez and Miguel Segovia; Arturo Prat University; 2) Copy of the challenged resolutions; and,
3) Certificate of validity of legal personality and Board of Directors of the Pai Ote Community. Subsequently, on page 9, on November 30, two thousand twenty-two, Mr. Willy Kracht Gajardo, Chilean, chemical civil engineer, Undersecretary of Mining, on behalf of the Ministry of Mining, with domicile at Amunátegui No. 232, 16th floor, commune and city of Santiago, appears and submits the report that was required of said entity, requesting the rejection of the appeal, according to the factual background and legal considerations set forth therein.
First, it states that the appeal is untimely because the appealed acts were the result of various stages or public policies prior to their issuance and that, after their complete processing, their content and/or existence was public knowledge, so it is not possible to establish that the appellant only became aware of them on September 29, 2022.
Thus, on January 12, 2022, the appellant filed an appeal for protection against the lithium bidding process carried out after the publication in the
Official Gazette of Supreme Decree No. 23 of 2021, issued by the Ministry of Mining, which established the requirements and conditions of the Special Operating Contract for the lithium production of the lithium mine, exploration, exploitation and benefit of lithium deposits that the State of Chile would subscribe in accordance with the bases of the public bidding that would be approved for such purposes.
In addition, the appeal claims that Compañía Minera Salares del Norte SpA (editorial note inserted: reference Francisco Javier Errázuriz and Lithium Tender Bid of US$60,000,000 for 80,000mt LCE export quota license) had initiated a consultation process before the Tribunal de Defensa de la Libre Competencia against the administrative act that had approved the public bidding conditions that had the purpose of bidding quotas for the extraction of marketable metallic lithium in the national territory. Moreover, it states, not only were they aware of the existence of the consultation, but also of its content, since they cite the main arguments that the mining company put forward to defend its position that the bidding conditions in question violated the legal regulation that protects free competition in the markets.
In addition, in the aforementioned appeal for protection No. 10-2022 of this Court, it was pointed out that two lithium extraction projects are
authorized in the Salar de Maricunga, belonging to the companies Salar Blanco (editorial note: reference Martin Borda) and SIMCO (editorial note: reference Grupo Errázuriz), adding that they have been the subject of national and international reports, whose sources are cited.
In the same appeal for protection, the appellant mentions press and opinion articles referring to the bidding process for lithium extraction quotas
that support its claims. For its part, it highlights that on October 24, 2014, Supreme Decree No. 60, 2014, of the Ministry of Mining was published in the Official Gazette, which created the Presidential Advisory Commission called "National Lithium Commission", a fact that was also disseminated by various media outlets. She then points out that the conclusions of the Commission's report and the National Lithium Policy and Governance of Salt Flats, launched as a result of the work of said body, were widely disseminated in various media at the end of January 2016.
She then states that in April 2017, the Ministry of Mining carried out its public account for the previous year, which, in addition, was widely disseminated by the media, highlighting among other measures, that the Company instructed the Ministry of Mining, together with Codelco, to
analyze a business model that would allow the use of the Maricunga and Pedernales salt flats through public-private partnerships.
It adds that the aforementioned public account mentions that the aforementioned company in January 20217 defined its business model,
initiating the search for a strategic partner for the development of lithium, being in process the constitution of a subsidiary that would be dedicated
exclusively to the exploration and subsequent exploitation of the mineral substance in the Salar de Maricunga.
Continuing, it points out that in compliance with the objectives of the aforementioned instruments, Supreme Decree No. 64, of 2017, was issued, which set the conditions and requirements of the special operating contract to be signed with the company Salar de Maricunga SpA to develop lithium exploration, exploitation and beneficial work in the Salar de Maricunga.
The decree established the geographic area associated with the special operating contract in the Salar de Maricunga and its surroundings;
and all the demands, requirements and conditions that the special operating contract would contain, without leaving any essential aspect out of it.
In effect, it established its term until December 31, 2057, the contractual or execution phases of the agreement, called exploration and prospecting, construction and exploitation and site closure phases, the supervision of the contract, the amount or volume of lithium production, the contractor's retribution to the State of Chile, the annual payment for research and development R&D, the grounds for early termination and, in general, the rights and obligations of each of the parties.
Thus, the decree contained all the aspects that the appellant alleges are the basis for justifying that the contract should be submitted, prior to its
execution, to the indigenous consultation process.
Next, it points out that the aforementioned Decree No. 64 of 2017 was published in the Official Gazette on March 1, 2018, the date from which it was 2018, in which Decree number 64 of 2017 is published in the Official Gazette;
2) March 9, 2018, when the CEOL is signed between the Ministry of Mining and "Salar de Maricunga SpA"; and,
3) March 2022: Date on which CODELCO and not its subsidiary "Salar de Maricunga SpA", starts drilling in the area of influence of the CEOL, on mining properties whose only current holder is CODELCO. Thus, they state, it is not plausible, if the area indicated corresponds to one in which the appellant community claims to carry out ancestral practices as part of its culture, that it was not aware of the beginning of the drilling work by CODELCO.
Furthermore, they state that it is not appropriate to confuse the acts of execution of the project or the omissions attributed to the appellee with its
alleged effects, as the appellant claims.
To understand it differently, they indicate, would go against the objective nature of the term established in the Agreed Order that regulates
the matter, a term that cannot be subject to the sole will of the parties, an aspect that is based on the necessary certainty and legal security in the
relations in question.
Thus, despite having been accepted for processing, they claim that the appeal should be declared out of time, in accordance with the criteria
contained in the judgment issued by the Supreme Court on December 30, 2008 in case Rol 6482-2008.
On the other hand, they argue that the remedy of protection is not the appropriate way to address the facts raised, because the measures that
would eventually be required to safeguard the allegedly threatened guarantees are within the competence of the organs of the State Administration and the specialized jurisdictional body, to which they add that in this case there are no undisputed and concrete rights that require protection in the framework of an agile and expeditious procedure such as the one in this case.
Next, they state that the CEOL does not generate any of the effects, characteristics or circumstances of Article 11 of Law No. 19,300, which give
rise to the need to prepare an Environmental Impact Study, since it is not an exploration or exploitation project per se.
The Company has not yet started the execution of the project, which is susceptible of being evaluated. In addition, given its characteristics, the CEOL does not contain the mining project to be executed, but this must be presented by the owner, submitting it to the corresponding environmental assessment. It is within this framework that the area of influence of the project will be delimited and, therefore, the potential direct impact on indigenous peoples and the need to carry out the corresponding indigenous consultation.
On the other hand, they argue that it is not possible, as the appellant does, to simply assimilate the eventual mining project under the CEOL with
the "Maricunga Salt Production" project, nor necessarily assume that any initiative carried out by the contractor company under the CEOL will generate the same impacts as in the aforementioned project. Indeed, it is perfectly possible that exploration is simply carried out
under the CEOL, and that lithium is not exploited because it is not economically viable.
Furthermore, it will be within the framework of the corresponding environmental assessment that the impacts that may be produced by the
eventual mining project to be executed under the CEOL must be determined, which is endorsed by the fact that the CEOL itself considers the existence of different administrative procedures necessary for its execution, among which express reference is made to environmental permits.
Consequently, the CEOL does not represent in itself an administrative act susceptible of affecting the indigenous community that requires the
realization of a prior indigenous consultation process.
The respondent continues by stating that in this case the essential requirements for the action for protection are not met, for the following
reasons:
1) The appeal is directed against an action that complies with the law, in which the appellant has not indicated the laws infringed by the challenged acts;
2) The action is directed against an action that complies with prudent and rational behavior, so there is no arbitrariness, since such action has been developed in compliance with all the laws and regulations of the country;
3) The action is directed against an action that is not arbitrary, since it has been developed in compliance with all the laws and regulations of the country;
4) The appellant has not indicated the laws infringed by the challenged acts;
5) The action is directed against an action that complies
with all the laws and regulations of the country.
3) The conduct of the respondent does not threaten in any degree the legitimate exercise of the right it claims to be affected; and,
4) For all of the above, there is no causal relationship.
Thus, in the petition part of the report, they request that the above considerations be taken into account and that the appeal for protection be
rejected in all its parts, with costs.
Accompanying their presentation are the following documents:
1) Resolution No. 2, dated March 9, 2018;
2) Exempt Resolution No. 2,941 of the June 19, 2019; and,
3) Decree number 64, of 2017.
Finally, the case was heard on December 21, and counsel Ángela Véliz Cuellar, representing the State Defense Council, and counsel Germán Pfeffer Urquiaga, representing Sociedad Salar de Maricunga SpA, a subsidiary of Corporación Nacional del Cobre de Chile-Codelco Chile, appeared to present arguments against the appeal.
WHEREAS:
1°) The recourse for protection is an action of a precautionary nature, whose objective is the adoption of measures of an urgent nature, tending to safeguard pre-existing constitutional rights or guarantees, violated by illegal or arbitrary acts or omissions.
In effect, the Supreme Court has pointed out that although by virtue of the conservative competence that the aforementioned arbitration confers, all the measures that are deemed appropriate may be adopted to grant due protection to those who have seen their constitutional rights under Article 20 of the Political Constitution of the Republic violated, the truth is that we cannot lose sight of the fact that this action constitutes an emergency
measure established to provide a prompt and effective remedy to the abuses suffered by the citizen in his constitutional rights as a result of an action or omission that is clearly illegal and/or arbitrary, a matter that justifies a quick jurisdictional intervention that sufficiently protects the threatened right, while the corresponding ordinary or special court is seized, granting effective protection to the appellants.
2°) In this order of ideas, in order to be viable, this constitutional action must comply with the requirements set forth in Article 20 of the Political Constitution of the Republic, as well as in the order issued by the Supreme Court regulating this matter. With regard to the specific issues relevant to the case under study, it is pertinent to refer to Article 1 of the aforementioned order, which establishes the term for the filing of this appeal, establishing the following:
"The recourse or action for protection shall be filed before the Court of
Appeals in whose jurisdiction the arbitrary or illegal act or omission was
committed or incurred that causes deprivation, disturbance or threat to the
legitimate exercise of the respective constitutional guarantees, or where
these have produced their effects, at the choice of the appellant, within a
period of thirty calendar days from the execution of the act or the occurrence of the omission or, depending on the nature of the same, from the time when news or certain knowledge of the same has been obtained, which shall be recorded in the case file".
3°) In accordance with the foregoing, it is a certain fact that the term to file the protection action is a fatal term of thirty calendar days counted from the execution of the act or the occurrence of the omission or, depending on the nature of the same, from the time that news or certain knowledge of the same has been obtained, which shall be recorded in the case file.
4°) In this order of ideas, it is important to take into consideration which are the acts issued by the Ministry of Mining that are being appealed, which according to the challenged action are the following:
* Resolution No. 2, dated March 9, 2018, which "Approves special operating contract for the exploration, exploitation and benefit of lithium
deposits in the Salar de Maricunga, located in the Atacama region, signed between the State of Chile and the company Salar de Maricunga SpA";
* Exempt Resolution No. 2,941 of June 19, 2019, which "Approves a special contract for the operation of lithium deposits in the Salar de
Maricunga and its surroundings, subscribed between the State of Chile and Sociedad Salar de Maricunga SpA, modifications indicated, and annexes".
5°) Then, since the action under study was filed on October 29, 2022, it is clear and certain that the thirty-day deadline established in the agreed order regulating the matter has been more than met, since 4 years, 7 months and 20 days have elapsed since the date of issuance of each of these acts, in the first case; and 3 years, 4 months and 10 days, in the second case.
Notwithstanding the foregoing, it is essential to take into account in this part that what the appellant stated in this regard in her constitutional libel, in which she stated the following:
"It is of the case that on September 29 of this year my advisor Ariel León sends me a WhatsApp audio message in which he indicates that he
has something very important to talk to me and jointly accompanies a photograph of a brief from the State Defense Council, in case Rol of this
same Ilma. Court of Appeals of Copiapó, Rol 1036-2022, indicating that the Tata Inti colla community of the Town of Los Loros, has no territorial
presence in the Salar de Maricunga, as follows: "Descriptive plan of the territorial claims of the aforementioned Community that locates them to the
south of the Tierra Amarilla Commune, not showing any contact with the Maricunga Salt Flat".
I could not answer him at that moment, but later I did, and Ariel León informed me that a couple of weeks ago the lawyer Hugo Castro Charles
had called him to ask the Pai Ote community to participate in a lawsuit that he had filed against another so-called "lithium bidding process" different from the one already annulled by the Supreme Court. He asked us to be part of it because it covered our territory. My advisor informed me that due to various jobs and occupations he was only able to read the file during the morning of September 29, and that the mentioned protection action (Rol 1036-2022, ICA Copiapó) had been filed by the Colla Tata Inti Community of the town of Los Loros against the Ministry of Mining, for a special lithium operation contract (CEOL), by virtue of which Codelco created a public company subsidiary of the same, in charge of the exploration and exploitation of the lithium, exploitation of lithium in the Salar de Maricunga, called SpA MARICUNGA.
As a community, we were totally unaware of this news and, as is reflected in the report filed in this case, as in environmental surveys before the Environmental Evaluation Service, we carry out an absolutely traditional Colla life in the interior of the commune of Copiapó, being the only colla community that carries out transhumance work, that we own around 2000 head of goats, sheep and mules, distributed in different parts of the territory according to the disposition and existence of pastures and watering places, Therefore, it is almost impossible for us to be aware of the Diario Financiero, El Mercurio, La Tercera and other specialized mining media, let alone the Diario Oficial, so that we can be required to have full knowledge of such specific news as the existence of a Special Operating Contract or the creation of a subsidiary of Codelco to explore and exploit lithium in the Salar de Maricunga".
6°) Thus, this Court declared the present constitutional action admissible, in the understanding that the appellant argued that it had only
become aware of the appealed acts on September 29, 2022.
However, during the processing of the present case, this Court was able to observe a situation different from the one expressed by the appellant, which, necessarily, makes it necessary to vary what was established ab initio in the admissibility stage.
7°) In effect, during the processing of the present case, the respondent and the third party intervener were aware that the appellant had full knowledge of the situations alleged long before what she indicated in her constitutional libel, since on January 12, 2022, filed before this same Court of Appeals of Copiapó an appeal for protection, Court Case No. 10-2022, which was joined to Court Case No. 9-2022, in which she also complained about a situation absolutely similar to the one that summons us in these proceedings.
On this point, it is sufficient to state for the record that the appellant in this appeal is "Mrs. ERCILIA ERNESTINA ARAYA ALTAMIRANO, national
identity card number 10.561.080-7, President of the INDIGENOUS COMMUNITY COLLA PAI OTE, legally registered with legal personality in
force under No. 59 in the Registry of Indigenous Communities and Associations of the National Corporation for Indigenous Development,
domiciled for these purposes at 21 de Mayo Street No. 5285, city of Copiapó, Atacama Region".
On the other hand, in relation to the claim, it was argued in said constitutional libel the following:
"... in favor of all those persons and Indigenous Communities that inhabit the territories in question, where there is lithium that can be exploited by virtue of the so-called lithium bidding and whose right to equality before the law is threatened, as established both in the domestic law in force and in international instruments.
The foregoing by virtue of the factual and legal background that will be set forth below and that, in short, have caused the appellants the violation and threat to the legitimate exercise of the Constitutional Guarantees established in Article 19 number 2 of the Political Constitution of the
Republic. These facts are related to the so-called Lithium Bidding, based on Decree 23 of the MINISTRY OF MINING, which ESTABLISHES
REQUIREMENTS AND CONDITIONS OF THE SPECIAL OPERATION CONTRACT FOR THE EXPLORATION, EXPLOITATION AND BENEFIT OF LITHIUM DEPOSITS THAT THE STATE OF CHILE WILL SUBSCRIBE, IN ACCORDANCE WITH THE BASIS OF THE NATIONAL AND
INTERNATIONAL PUBLIC BIDDING THAT IS APPROVED FOR THESE PURPOSES, dated July 27, 2021, and published in the Official Gazette on October 13, 2021, as well as the administrative acts that depend on it or that execute it, to the effect that SSI Ilma. of the order to annul such acts and the tender itself, for not having completed the indigenous consultation required by national and international law, according to the petition".
Finally, with respect to the destination of protection resources No. 9 - 2022 and No. 10-2022, it should be noted that the The appellant herself, Mrs. Ercilia Ernestina Araya Altamirano, on July 4, 2022, expressly withdrew the appeal for protection she had filed.
8°) As a conclusion of the foregoing, this Court of Appeals necessarily understands that the appellant at least since January 12, 2022, at the time of the filing of Protection Appeal No. 10-2022, had full knowledge of the acts now challenged in these proceedings.
Consequently, the situation previously described in the fifth ground must be understood as an accommodating and bad faith maneuver on the part of the appellant for the purpose of successfully circumventing the admissibility phase of the action filed, which, according to what has already been stated, was clearly untimely, for which reason, it must be rejected, with costs, in view of the merit of the serious situation already denounced previously.
In view of these considerations, and also in view of the provisions of Article 20 of the Political Constitution of the Republic and the Agreed Order on Processing and Judgment of the Appeal for Protection, the appeal for protection filed by Mrs. Ercilia Ernestina Araya Altamirano, on her own behalf and on behalf of the Cola Pai Ote Indigenous Community, filed against the Ministry of Mining, represented by the Minister, Mrs. Marcela Hernando Pérez, is REJECTED, with costs.
Register and, when appropriate, file.
Drafting by Alternate Minister Mr. Rodrigo Cid Mora.
Court of Protection Case No. 1230-2020.
Marcela Paz Ruth Araya Novoa
Minister(P)
Date: 05/01/2023 10:15:53 am
Pablo Bernardo Krumm De Almozara
Minister
Date: 05/01/2023 10:15:53 am
Rodrigo Miguel Cid Mora
Minister(S)
Date: 05/01/2023 10:15:54 am
Pronounced by the First Chamber of the Court of Appeals of Copiapo composed of Presiding Judge Marcela Paz Ruth Araya N., Judge Pablo Bernardo Krumm D. and Alternate Judge Rodrigo Miguel Cid M. Copiapo, January fifth, two thousand twenty-three.
In Copiapo, on the fifth day of January, two thousand and twenty-three, I notified the preceding resolution in the Secretariat by means of the Daily Gazette.
by Copiapo Appellate Court https://www-maray-cl.translate.goog/corte-de-copiapo-rechaza-recurso-de-proteccion-por-resoluciones-que-autorizan-explotacion-de-litio/?_x_tr_sl=es&_x_tr_tl=en&_x_tr_hl=en-US&_x_tr_pto=wapp January 5, 2023 possibly having future impact on similar lawsuits brought by gimme-gimme injuns to extort/blackmail legal lithium mining operations outside the sacred-bullsheet hunting/livestock-grazing/copulating/praying grounds all these phony actor Russian Inuit/Eskimo descendants claim they should be controlling (ie lording over) in Chile.
We at NewCo (LPI) Maricunga and our friendly Colla group-1 locals have previously smoked the peace pipe and are kosher on our mutually-agreed financial payoff royalty deal (to the locals) affecting our Stage 1 & 2 mining operations. As such we were not involved in Mrs Ercilia Ernestina Araya Altamirano (and Colla group 2 injuns) lawsuit against Salar de Maricunga SpA owned by Codelco who is victorious in this lawsuit and now eligible for financial damages from Mrs Ercilia who we are hoping next has herass nailed to the wall by Codelco.
This far-reaching appellate court decision is going to be used for reference in future junior lithium miner court cases and will almost assuredly be called up in the possible upcoming BYD & Grupo_Errázuriz lawsuits to have their 80,000mt LCE export quota licenses reinstated. This legal decision also gives validity to the Salar Blanco (Martin Borda) & SIMCO claims of additional/redundant legal precedence to mine lithium in Maricunga free from CEOL BS restrictions which in itself is happily kinda' golden for us.
The full English version of the appellate court decision follows below.
The Doctor
---------------------------
Appellate Court of Copiapó
Copiapó, January fifth, two thousand twenty-three (January 5, 2023).
IN VIEW OF:
On page 1, on October 29, two thousand twenty-two,
Mrs. Ercilia Ernestina Araya Altamirano, farmer and breeder, appeared on her own behalf and on behalf of the Colla Pai Ote Indigenous Community, legally registered with current legal status under No. 59 in the Registry of Indigenous Communities and Associations of the National Corporation for Indigenous Development, both domiciled for these purposes at
___21 de Mayo Street No. 5285,
___Copiapó,
___Atacama Region, Chile
and filed an appeal for protection against the Ministry of Mining, legally represented by Mrs. Marcela Hernando Pérez, by Minister Marcela Hernando Pérez, both domiciled at
___21 de Mayo Street No. 5285,
___Copiapó City,
___Atacama Region
and filed an appeal for protection against the Ministry of Mining, legally represented by Mrs. Marcela Hernando Pérez, by Minister Marcela Hernando Pérez, both domiciled at
___232 Amunátegui Street, 15th, 16th & 17th floors,
___Santiago, Chile
for the issuance of Resolution No. 2, of March 9, 2018, which "Approves the special operation contract (CEOL) for the exploration, exploitation and benefit of lithium deposits in the Salar de Maricunga, located in the Atacama region, subscribed between the State of Chile and the company Salar de Maricunga SpA" (editorial note: Salar de Maricunga SpA is a subsidiary of Codelco); and, by the issuance of Exempt Resolution No. 2.941, dated June 19, 2019, which "Approves the special contract for the operation of lithium deposits in the Salar de Maricunga and its surroundings, signed between the State of Chile and Sociedad Salar de Maricunga SpA, modifications that it indicates, and annexes", as such actions, which are qualified as illegal and arbitrary, violate the right to equality before the law enshrined in Article 19 No. 2 of the Political Constitution of the Republic.
In this regard, and preliminarily, she notes that the members of the community are mostly engaged in livestock and agriculture, selling their products. Most of them are breeders, ie people who produce goat cheese and other products, as well as transhumance (cattle driving) livestock, for whom water is not only a resource, but also something sacred, just like the land.
It adds that the community has real and effective territorial roots in the Atacama Region, and in particular in the Salar de Maricunga, as established in the study "Informe de ocupación territorial de la Comunidad Indígena Colla Pai Ote, Región de Atacama, to justify the application.
The document transcribed in the appeal refers in detail to the territory occupied by the Colla Pai Ote Community in economic and productive
activities, and in the permanent and temporary settlement. Then, she points out that on September 29 of this year, counselor Ariel León sent the plaintiff a WhatsApp audio message in which she indicated that she had something very important to talk about and together with a photograph of a brief from the State Defense Council, filed in the case filed in this Court under number 1036-2022.
She adds that later Ariel León informed her that the lawyer Hugo Castro Charles had called her to ask the Pai Ote community to participate in a lawsuit that she had initiated for the so-called "lithium bidding", taking part in it.
She claims that her advisor informs her that she was only able to read the file during the morning of September 29, and that the respective recourse for protection had been filed by the Colla Tata Inti Community of the town of Los Loros against the Ministry of Mining, for a special lithium operation contract (CEOL), by virtue of which Codelco created a public company subsidiary of the same, in charge of the exploration and exploitation of lithium in the Salar de Maricunga, called SpA Maricunga, which until that moment it was unaware of.
Having specified the above, it refers that all the clauses of the challenged resolutions affect them, highlighting the second, according to which the purpose of the contract is to authorize the contractor to develop exclusively all kinds of activities and exploration work, exploitation and benefit operations on the lithium substances located in the so-called "CEOL Area"; the third, referring to the term of the contract, with respect to which it is highlighted that the contract will come into effect on the Effective Date and will be extended until December thirty-first, two thousand fifty-seven (December 31, 2057) ; the fourth, fifth and sixth, referring to the CEOL Exploitation Area, the Project Exploitation Area and the Salar de Maricunga Area, respectively.
Thus, she argues, the lithium industry is intended to be developed in a sacred place for the community and its members, where very valuable and
important ancient ceremonies are held, where salt is located and used for purification and also for cattle to eat in order to get rid of parasites such as
yuta; and it is also a place where there are registered and proven transhumance (cattle driving) routes.
In this way, she indicates, there are environmental effects that must be consulted, but above all, and prior to the environmental aspect, other
different consultations are necessary due to the impact on the development priorities of the Pai Ote Community, as well as on our way of life, economic perspectives and other non-environmental effects, since the activities that we carry out in the territory will be profoundly affected if the resolutions in question are executed without due indigenous consultation.
She specifies that although at one time they were strongly opposed to any mining project, today they have taken a strategic position, after having
been persecuted by some companies. Continuously, it states that the appellant community did not become a party in the process corresponding to the appeal for protection role 1036-22 of this Court, so as not to be left with a secondary or accessory role as happened in a similar case, corresponding to role 25.142-2018 of the Supreme Court, in which it became a party as an intervener third party.
In addition, and on this same topic, she refers that the Colla Pai Ote Community is serious and respectful, so it would not file lawsuits covering the territory of other communities. She then states that the constitutional guarantee threatened, restricted and violated is equality before the law, recognized in Article 19 N° 2 of the Political Constitution of the Republic, with respect to which she points out that the disregard of the specificity of indigenous rights prevents effective equality, that is, that those who are equal are treated as equals and those who are different are treated as different.
Thus, indigenous rights have different standards of application to the indigenous peoples that make them up, so that the non-application of these special standards violates the right to equality before the law, as this denies that difference, and assimilates indigenous peoples and individuals into society, causing the cultural extinction of indigenous peoples.
It then points out that indigenous consultation is a mechanism motivated precisely by the right to equality, as a measure of positive discrimination, constituting a mechanism that implies reestablishing the equality that indigenous peoples materially lack.
For its part, it emphasizes that the legal duty of the State to consult with indigenous peoples when processing legislative and/or administrative
norms that affect them is an obligation recognized in Article 6 N° 1 of ILO (International Labour Organization) Convention N° 169, consultation that must be carried out in good faith, in a manner appropriate to the circumstances, through representative institutions and must be carried out with the aim of reaching an agreement or achieving the consent of the indigenous peoples regarding the appropriate measures.
It goes on to state that according to Article 7 No. 1 of ILO (International Labour Organization ) Convention No. 169, the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to control, as far as possible, their own economic, social and cultural development.
She then clarifies that this consultation does not refer to the environmental effects of specific projects, but is prior, and is related to the effects of the resolutions in question on the way of life of the peoples due to the imposition of a mining development plan through the CEOL, with respect
to the rest of the non-indigenous people.
In cases in which the State retains ownership of mineral or subsoil resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult the peoples concerned to determine whether and to what extent their interests
would be prejudiced before undertaking or authorizing any mining or extraction program, prospecting for or exploitation of resources existing on their lands. The peoples concerned shall, wherever possible, participate in the benefits derived from such activities, and shall receive fair compensation for any damage they may suffer as a result of such activities", a rule that is applicable in this case because lithium is State property and lithium prospecting or exploitation programs are authorized in the Salar de Maricunga.
Finally, in this regard, it relates that the institution of consultation with indigenous peoples is not a merely procedural matter and that its essential
requirements have been systematized and enriched by the jurisprudence of the supervisory bodies of the ILO (Geneva) and other authorized human
rights bodies, such as the Inter-American Court and the Special Rapporteur on the rights and freedoms of indigenous peoples, in the terms it develops.
Now, having specified the above, she points out that the illegality is determined by having omitted the right to indigenous consultation, in
circumstances that with the report prepared by the prominent geographer and post doctorate in Anthropology Raul Molina, and with the support of the Universidad Arturo Prat, it has become clear that the territory where the Salar de Maricunga is located is indigenous territory belonging to the Colla Pai Ote Indigenous Community, so the public bodies that issued the resolutions challenged in this appeal should have consulted the Colla Pai Ote Community on the matter as a first step.
In addition, the challenged resolutions suffer from nullity defects for having omitted prior consultation, which is a right of the native peoples,
declared in various articles of Convention 169, especially Articles 6, 7 and 15, already analyzed.
Then, regarding arbitrariness, it argues that the administrative processing and the issuance of these resolutions were not focused on the indigenous people who use and occupy the Salar de Maricunga, being known by the authorities involved, that the respective communities are normally settled in territories far from large cities, making the possibilities of connection by means of the following means very difficult technology such as cell phones and computers with internet, because there is no connectivity plan that includes these areas.
Thus, given the invasion of projects in their territory, and because handling a computer, connecting to the internet and being part of a webinar
meeting can be very complex, because their way of life is developed around the land and transhumance (cattle driving) not connected to a computer, a communication plan of public agencies with indigenous peoples is missing, because its absence contributes to the arbitrariness of the actions and omissions of the appellant.
Now, regarding the filing deadline, the community found out about the contested bids, due to the offer made by attorney Hugo Castro Charles,
transmitted to counsel Ariel León Bacian, to become a party to the 1036-2022 protection action. Ariel León read the file only on September 29, 2022, and on the same day she communicated by telephone with the plaintiff, explaining the implications and details of that arbitration. Thus, only on that day she learned of the challenged resolutions, so the appeal has been filed within the thirty-day term provided for in act number 94-2015, of the Supreme Court.
In addition, it should be noted that the members of the Pai Ote Indigenous Community mostly live in territories far from the city, settling in the sectors adjacent to the highlands, which is the place where they develop their way of life, so that the dissemination of information and the time it takes
them to learn the news, to decide what measures to take, and even the decision to sue, are much longer and different from the usual times
considered for the common citizens. This is why it is immensely necessary to consider the reality of the indigenous inhabitants of the territories in question, since the remoteness of their settlements, and for the rest of the communities and inhabitants of rural areas is the same and they must wait for the information to reach their territories, due to the distances, lack of connectivity of the area and lack of knowledge of some issues that must be handled thoroughly to understand what is proposed by the State, so the possibilities of the community members to be informed, definitely requires more time than ordinary and specific mechanisms that do have the reception due to the circumstances and the persons to be informed. She cites Gaspar Jenkins Peña y Lillo for this purpose. Universidad del Desarrollo, Chile. On the relaxation of the time limit for filing a writ of protection: Reflections from recent jurisprudence. Revista de Derecho Público No. 96 (2022). Pp. 21-41.
Likewise, it emphasizes that the challenged resolutions have a duration until the year 2057, according to the second clause of the CEOL, so that the violation of the right to equality before the law infringed upon the Pai Ote Community is continuous and permanent, so that the term does not expire, particularly if it is taken into account that we are not dealing with affectations of a patrimonial nature, but rather with aspects that relate to the effects on the way of life of an indigenous community protected by law and international treaties.
Then, it emphasizes the fact that the violation of the norm established for the execution of the indigenous consultation is not something new, but
rather it is a repetitive act that has been occurring for a long time, not only in the resolutions in question in this process, as has occurred in the cases it indicates.
Finally, she argues that, in accordance with the provisions of the Auto Agreement of the Honorable Supreme Court for the processing of the appeal of protection, this can be filed in the Court of Appeals of the place where the action or omission that is appealed has been committed, or in the Court of Appeals of the place where the action or omission has its effects; and, as the acts described have effects in the territory that is owned by indigenous ancestral and that includes the Salar de Maricunga, she concludes that This Court is competent to hear this appeal.
Thus, it requests that this appeal for protection be accepted, adopting the following measures:
1) Resolution No. 2 of March 9, 2018, of the Ministry of Mining, which "Approves the special operating contract for the exploration, exploitation and benefit of lithium deposits in the Salar de Maricunga, located in the Atacama region, signed between the State of Chile and the company
Salar de Maricunga SpA", and Exempt Resolution No. 2.941 of June 19, 2019, which "Approves the special contract for the operation of lithium
deposits in the Maricunga Salar, located in the Atacama region, signed between the State of Chile and the company Salar de Maricunga SpA".
Salar de Maricunga and its surroundings, signed between the State of Chile and the Company "Salar de Maricunga SpA", modifications indicated, and annexes";
2) To order the annulment of all resolutions, decrees, administrative acts and measures that depend on and are subsequent to the
aforementioned resolutions; 3) The respondent is ordered to have suitable mechanisms for communication, dissemination and permanent dialogue with the appellant in matters that affect it; 4) The respondent's actions and omissions are declared illegal and arbitrary for having omitted the indigenous consultation in the case in question. The following documents are attached: 1) Report of Territorial Occupation of the Colla Pai Ote Indigenous Community, Atacama Region, to justify the territorial request of the Pai Ote Community to the Ministry of National Assets and Conadi, made by Raúl Molina, Luis Pérez and Miguel Segovia; Arturo Prat University; 2) Copy of the challenged resolutions; and,
3) Certificate of validity of legal personality and Board of Directors of the Pai Ote Community. Subsequently, on page 9, on November 30, two thousand twenty-two, Mr. Willy Kracht Gajardo, Chilean, chemical civil engineer, Undersecretary of Mining, on behalf of the Ministry of Mining, with domicile at Amunátegui No. 232, 16th floor, commune and city of Santiago, appears and submits the report that was required of said entity, requesting the rejection of the appeal, according to the factual background and legal considerations set forth therein.
First, it states that the appeal is untimely because the appealed acts were the result of various stages or public policies prior to their issuance and that, after their complete processing, their content and/or existence was public knowledge, so it is not possible to establish that the appellant only became aware of them on September 29, 2022.
Thus, on January 12, 2022, the appellant filed an appeal for protection against the lithium bidding process carried out after the publication in the
Official Gazette of Supreme Decree No. 23 of 2021, issued by the Ministry of Mining, which established the requirements and conditions of the Special Operating Contract for the lithium production of the lithium mine, exploration, exploitation and benefit of lithium deposits that the State of Chile would subscribe in accordance with the bases of the public bidding that would be approved for such purposes.
In addition, the appeal claims that Compañía Minera Salares del Norte SpA (editorial note inserted: reference Francisco Javier Errázuriz and Lithium Tender Bid of US$60,000,000 for 80,000mt LCE export quota license) had initiated a consultation process before the Tribunal de Defensa de la Libre Competencia against the administrative act that had approved the public bidding conditions that had the purpose of bidding quotas for the extraction of marketable metallic lithium in the national territory. Moreover, it states, not only were they aware of the existence of the consultation, but also of its content, since they cite the main arguments that the mining company put forward to defend its position that the bidding conditions in question violated the legal regulation that protects free competition in the markets.
In addition, in the aforementioned appeal for protection No. 10-2022 of this Court, it was pointed out that two lithium extraction projects are
authorized in the Salar de Maricunga, belonging to the companies Salar Blanco (editorial note: reference Martin Borda) and SIMCO (editorial note: reference Grupo Errázuriz), adding that they have been the subject of national and international reports, whose sources are cited.
In the same appeal for protection, the appellant mentions press and opinion articles referring to the bidding process for lithium extraction quotas
that support its claims. For its part, it highlights that on October 24, 2014, Supreme Decree No. 60, 2014, of the Ministry of Mining was published in the Official Gazette, which created the Presidential Advisory Commission called "National Lithium Commission", a fact that was also disseminated by various media outlets. She then points out that the conclusions of the Commission's report and the National Lithium Policy and Governance of Salt Flats, launched as a result of the work of said body, were widely disseminated in various media at the end of January 2016.
She then states that in April 2017, the Ministry of Mining carried out its public account for the previous year, which, in addition, was widely disseminated by the media, highlighting among other measures, that the Company instructed the Ministry of Mining, together with Codelco, to
analyze a business model that would allow the use of the Maricunga and Pedernales salt flats through public-private partnerships.
It adds that the aforementioned public account mentions that the aforementioned company in January 20217 defined its business model,
initiating the search for a strategic partner for the development of lithium, being in process the constitution of a subsidiary that would be dedicated
exclusively to the exploration and subsequent exploitation of the mineral substance in the Salar de Maricunga.
Continuing, it points out that in compliance with the objectives of the aforementioned instruments, Supreme Decree No. 64, of 2017, was issued, which set the conditions and requirements of the special operating contract to be signed with the company Salar de Maricunga SpA to develop lithium exploration, exploitation and beneficial work in the Salar de Maricunga.
The decree established the geographic area associated with the special operating contract in the Salar de Maricunga and its surroundings;
and all the demands, requirements and conditions that the special operating contract would contain, without leaving any essential aspect out of it.
In effect, it established its term until December 31, 2057, the contractual or execution phases of the agreement, called exploration and prospecting, construction and exploitation and site closure phases, the supervision of the contract, the amount or volume of lithium production, the contractor's retribution to the State of Chile, the annual payment for research and development R&D, the grounds for early termination and, in general, the rights and obligations of each of the parties.
Thus, the decree contained all the aspects that the appellant alleges are the basis for justifying that the contract should be submitted, prior to its
execution, to the indigenous consultation process.
Next, it points out that the aforementioned Decree No. 64 of 2017 was published in the Official Gazette on March 1, 2018, the date from which it was 2018, in which Decree number 64 of 2017 is published in the Official Gazette;
2) March 9, 2018, when the CEOL is signed between the Ministry of Mining and "Salar de Maricunga SpA"; and,
3) March 2022: Date on which CODELCO and not its subsidiary "Salar de Maricunga SpA", starts drilling in the area of influence of the CEOL, on mining properties whose only current holder is CODELCO. Thus, they state, it is not plausible, if the area indicated corresponds to one in which the appellant community claims to carry out ancestral practices as part of its culture, that it was not aware of the beginning of the drilling work by CODELCO.
Furthermore, they state that it is not appropriate to confuse the acts of execution of the project or the omissions attributed to the appellee with its
alleged effects, as the appellant claims.
To understand it differently, they indicate, would go against the objective nature of the term established in the Agreed Order that regulates
the matter, a term that cannot be subject to the sole will of the parties, an aspect that is based on the necessary certainty and legal security in the
relations in question.
Thus, despite having been accepted for processing, they claim that the appeal should be declared out of time, in accordance with the criteria
contained in the judgment issued by the Supreme Court on December 30, 2008 in case Rol 6482-2008.
On the other hand, they argue that the remedy of protection is not the appropriate way to address the facts raised, because the measures that
would eventually be required to safeguard the allegedly threatened guarantees are within the competence of the organs of the State Administration and the specialized jurisdictional body, to which they add that in this case there are no undisputed and concrete rights that require protection in the framework of an agile and expeditious procedure such as the one in this case.
Next, they state that the CEOL does not generate any of the effects, characteristics or circumstances of Article 11 of Law No. 19,300, which give
rise to the need to prepare an Environmental Impact Study, since it is not an exploration or exploitation project per se.
The Company has not yet started the execution of the project, which is susceptible of being evaluated. In addition, given its characteristics, the CEOL does not contain the mining project to be executed, but this must be presented by the owner, submitting it to the corresponding environmental assessment. It is within this framework that the area of influence of the project will be delimited and, therefore, the potential direct impact on indigenous peoples and the need to carry out the corresponding indigenous consultation.
On the other hand, they argue that it is not possible, as the appellant does, to simply assimilate the eventual mining project under the CEOL with
the "Maricunga Salt Production" project, nor necessarily assume that any initiative carried out by the contractor company under the CEOL will generate the same impacts as in the aforementioned project. Indeed, it is perfectly possible that exploration is simply carried out
under the CEOL, and that lithium is not exploited because it is not economically viable.
Furthermore, it will be within the framework of the corresponding environmental assessment that the impacts that may be produced by the
eventual mining project to be executed under the CEOL must be determined, which is endorsed by the fact that the CEOL itself considers the existence of different administrative procedures necessary for its execution, among which express reference is made to environmental permits.
Consequently, the CEOL does not represent in itself an administrative act susceptible of affecting the indigenous community that requires the
realization of a prior indigenous consultation process.
The respondent continues by stating that in this case the essential requirements for the action for protection are not met, for the following
reasons:
1) The appeal is directed against an action that complies with the law, in which the appellant has not indicated the laws infringed by the challenged acts;
2) The action is directed against an action that complies with prudent and rational behavior, so there is no arbitrariness, since such action has been developed in compliance with all the laws and regulations of the country;
3) The action is directed against an action that is not arbitrary, since it has been developed in compliance with all the laws and regulations of the country;
4) The appellant has not indicated the laws infringed by the challenged acts;
5) The action is directed against an action that complies
with all the laws and regulations of the country.
3) The conduct of the respondent does not threaten in any degree the legitimate exercise of the right it claims to be affected; and,
4) For all of the above, there is no causal relationship.
Thus, in the petition part of the report, they request that the above considerations be taken into account and that the appeal for protection be
rejected in all its parts, with costs.
Accompanying their presentation are the following documents:
1) Resolution No. 2, dated March 9, 2018;
2) Exempt Resolution No. 2,941 of the June 19, 2019; and,
3) Decree number 64, of 2017.
Finally, the case was heard on December 21, and counsel Ángela Véliz Cuellar, representing the State Defense Council, and counsel Germán Pfeffer Urquiaga, representing Sociedad Salar de Maricunga SpA, a subsidiary of Corporación Nacional del Cobre de Chile-Codelco Chile, appeared to present arguments against the appeal.
WHEREAS:
1°) The recourse for protection is an action of a precautionary nature, whose objective is the adoption of measures of an urgent nature, tending to safeguard pre-existing constitutional rights or guarantees, violated by illegal or arbitrary acts or omissions.
In effect, the Supreme Court has pointed out that although by virtue of the conservative competence that the aforementioned arbitration confers, all the measures that are deemed appropriate may be adopted to grant due protection to those who have seen their constitutional rights under Article 20 of the Political Constitution of the Republic violated, the truth is that we cannot lose sight of the fact that this action constitutes an emergency
measure established to provide a prompt and effective remedy to the abuses suffered by the citizen in his constitutional rights as a result of an action or omission that is clearly illegal and/or arbitrary, a matter that justifies a quick jurisdictional intervention that sufficiently protects the threatened right, while the corresponding ordinary or special court is seized, granting effective protection to the appellants.
2°) In this order of ideas, in order to be viable, this constitutional action must comply with the requirements set forth in Article 20 of the Political Constitution of the Republic, as well as in the order issued by the Supreme Court regulating this matter. With regard to the specific issues relevant to the case under study, it is pertinent to refer to Article 1 of the aforementioned order, which establishes the term for the filing of this appeal, establishing the following:
"The recourse or action for protection shall be filed before the Court of
Appeals in whose jurisdiction the arbitrary or illegal act or omission was
committed or incurred that causes deprivation, disturbance or threat to the
legitimate exercise of the respective constitutional guarantees, or where
these have produced their effects, at the choice of the appellant, within a
period of thirty calendar days from the execution of the act or the occurrence of the omission or, depending on the nature of the same, from the time when news or certain knowledge of the same has been obtained, which shall be recorded in the case file".
3°) In accordance with the foregoing, it is a certain fact that the term to file the protection action is a fatal term of thirty calendar days counted from the execution of the act or the occurrence of the omission or, depending on the nature of the same, from the time that news or certain knowledge of the same has been obtained, which shall be recorded in the case file.
4°) In this order of ideas, it is important to take into consideration which are the acts issued by the Ministry of Mining that are being appealed, which according to the challenged action are the following:
* Resolution No. 2, dated March 9, 2018, which "Approves special operating contract for the exploration, exploitation and benefit of lithium
deposits in the Salar de Maricunga, located in the Atacama region, signed between the State of Chile and the company Salar de Maricunga SpA";
* Exempt Resolution No. 2,941 of June 19, 2019, which "Approves a special contract for the operation of lithium deposits in the Salar de
Maricunga and its surroundings, subscribed between the State of Chile and Sociedad Salar de Maricunga SpA, modifications indicated, and annexes".
5°) Then, since the action under study was filed on October 29, 2022, it is clear and certain that the thirty-day deadline established in the agreed order regulating the matter has been more than met, since 4 years, 7 months and 20 days have elapsed since the date of issuance of each of these acts, in the first case; and 3 years, 4 months and 10 days, in the second case.
Notwithstanding the foregoing, it is essential to take into account in this part that what the appellant stated in this regard in her constitutional libel, in which she stated the following:
"It is of the case that on September 29 of this year my advisor Ariel León sends me a WhatsApp audio message in which he indicates that he
has something very important to talk to me and jointly accompanies a photograph of a brief from the State Defense Council, in case Rol of this
same Ilma. Court of Appeals of Copiapó, Rol 1036-2022, indicating that the Tata Inti colla community of the Town of Los Loros, has no territorial
presence in the Salar de Maricunga, as follows: "Descriptive plan of the territorial claims of the aforementioned Community that locates them to the
south of the Tierra Amarilla Commune, not showing any contact with the Maricunga Salt Flat".
I could not answer him at that moment, but later I did, and Ariel León informed me that a couple of weeks ago the lawyer Hugo Castro Charles
had called him to ask the Pai Ote community to participate in a lawsuit that he had filed against another so-called "lithium bidding process" different from the one already annulled by the Supreme Court. He asked us to be part of it because it covered our territory. My advisor informed me that due to various jobs and occupations he was only able to read the file during the morning of September 29, and that the mentioned protection action (Rol 1036-2022, ICA Copiapó) had been filed by the Colla Tata Inti Community of the town of Los Loros against the Ministry of Mining, for a special lithium operation contract (CEOL), by virtue of which Codelco created a public company subsidiary of the same, in charge of the exploration and exploitation of the lithium, exploitation of lithium in the Salar de Maricunga, called SpA MARICUNGA.
As a community, we were totally unaware of this news and, as is reflected in the report filed in this case, as in environmental surveys before the Environmental Evaluation Service, we carry out an absolutely traditional Colla life in the interior of the commune of Copiapó, being the only colla community that carries out transhumance work, that we own around 2000 head of goats, sheep and mules, distributed in different parts of the territory according to the disposition and existence of pastures and watering places, Therefore, it is almost impossible for us to be aware of the Diario Financiero, El Mercurio, La Tercera and other specialized mining media, let alone the Diario Oficial, so that we can be required to have full knowledge of such specific news as the existence of a Special Operating Contract or the creation of a subsidiary of Codelco to explore and exploit lithium in the Salar de Maricunga".
6°) Thus, this Court declared the present constitutional action admissible, in the understanding that the appellant argued that it had only
become aware of the appealed acts on September 29, 2022.
However, during the processing of the present case, this Court was able to observe a situation different from the one expressed by the appellant, which, necessarily, makes it necessary to vary what was established ab initio in the admissibility stage.
7°) In effect, during the processing of the present case, the respondent and the third party intervener were aware that the appellant had full knowledge of the situations alleged long before what she indicated in her constitutional libel, since on January 12, 2022, filed before this same Court of Appeals of Copiapó an appeal for protection, Court Case No. 10-2022, which was joined to Court Case No. 9-2022, in which she also complained about a situation absolutely similar to the one that summons us in these proceedings.
On this point, it is sufficient to state for the record that the appellant in this appeal is "Mrs. ERCILIA ERNESTINA ARAYA ALTAMIRANO, national
identity card number 10.561.080-7, President of the INDIGENOUS COMMUNITY COLLA PAI OTE, legally registered with legal personality in
force under No. 59 in the Registry of Indigenous Communities and Associations of the National Corporation for Indigenous Development,
domiciled for these purposes at 21 de Mayo Street No. 5285, city of Copiapó, Atacama Region".
On the other hand, in relation to the claim, it was argued in said constitutional libel the following:
"... in favor of all those persons and Indigenous Communities that inhabit the territories in question, where there is lithium that can be exploited by virtue of the so-called lithium bidding and whose right to equality before the law is threatened, as established both in the domestic law in force and in international instruments.
The foregoing by virtue of the factual and legal background that will be set forth below and that, in short, have caused the appellants the violation and threat to the legitimate exercise of the Constitutional Guarantees established in Article 19 number 2 of the Political Constitution of the
Republic. These facts are related to the so-called Lithium Bidding, based on Decree 23 of the MINISTRY OF MINING, which ESTABLISHES
REQUIREMENTS AND CONDITIONS OF THE SPECIAL OPERATION CONTRACT FOR THE EXPLORATION, EXPLOITATION AND BENEFIT OF LITHIUM DEPOSITS THAT THE STATE OF CHILE WILL SUBSCRIBE, IN ACCORDANCE WITH THE BASIS OF THE NATIONAL AND
INTERNATIONAL PUBLIC BIDDING THAT IS APPROVED FOR THESE PURPOSES, dated July 27, 2021, and published in the Official Gazette on October 13, 2021, as well as the administrative acts that depend on it or that execute it, to the effect that SSI Ilma. of the order to annul such acts and the tender itself, for not having completed the indigenous consultation required by national and international law, according to the petition".
Finally, with respect to the destination of protection resources No. 9 - 2022 and No. 10-2022, it should be noted that the The appellant herself, Mrs. Ercilia Ernestina Araya Altamirano, on July 4, 2022, expressly withdrew the appeal for protection she had filed.
8°) As a conclusion of the foregoing, this Court of Appeals necessarily understands that the appellant at least since January 12, 2022, at the time of the filing of Protection Appeal No. 10-2022, had full knowledge of the acts now challenged in these proceedings.
Consequently, the situation previously described in the fifth ground must be understood as an accommodating and bad faith maneuver on the part of the appellant for the purpose of successfully circumventing the admissibility phase of the action filed, which, according to what has already been stated, was clearly untimely, for which reason, it must be rejected, with costs, in view of the merit of the serious situation already denounced previously.
In view of these considerations, and also in view of the provisions of Article 20 of the Political Constitution of the Republic and the Agreed Order on Processing and Judgment of the Appeal for Protection, the appeal for protection filed by Mrs. Ercilia Ernestina Araya Altamirano, on her own behalf and on behalf of the Cola Pai Ote Indigenous Community, filed against the Ministry of Mining, represented by the Minister, Mrs. Marcela Hernando Pérez, is REJECTED, with costs.
Register and, when appropriate, file.
Drafting by Alternate Minister Mr. Rodrigo Cid Mora.
Court of Protection Case No. 1230-2020.
Marcela Paz Ruth Araya Novoa
Minister(P)
Date: 05/01/2023 10:15:53 am
Pablo Bernardo Krumm De Almozara
Minister
Date: 05/01/2023 10:15:53 am
Rodrigo Miguel Cid Mora
Minister(S)
Date: 05/01/2023 10:15:54 am
Pronounced by the First Chamber of the Court of Appeals of Copiapo composed of Presiding Judge Marcela Paz Ruth Araya N., Judge Pablo Bernardo Krumm D. and Alternate Judge Rodrigo Miguel Cid M. Copiapo, January fifth, two thousand twenty-three.
In Copiapo, on the fifth day of January, two thousand and twenty-three, I notified the preceding resolution in the Secretariat by means of the Daily Gazette.
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