Both Chile’s Water Code, specifically in its article 56, and the Mining Code, specifically article 110, regulate the so-called Aguas del Minero, an institution created during Augusto Pinochet’ s dictatorship and subsequently protected by the governments that followed in democratic times. This institution grants to the owners of mining properties the right to freely use the waters they discover. These waters can be used to explore, exploit, or benefit the mining company.
In practice, this means that a mining company that possesses the right to exploit a determined territory and discovers, in turn, an aquifer has the established right by law to extract water for the development of its business or company, without requiring authorization from the State for said extraction.
It’s shocking to observe that this right is still in force. Firstly, because of the illegitimacy of its origin. Let’s remember it was born during the dictatorship and subsequently note that no democratic government has wanted nor has had the intention of removing it or at least modifying it during the following 30 years. Finally, in July 2020, there were 138 “comunas” (decentralized political and administrative management units) in our country with a water shortage decree in effect thus disturbing the lives of thousands of people in the rural world.
Currently, the modification of this right is stuck in the National Congress, as well as many other laws on environmental protection, among them our Ley de Protección de Glaciares [Glacier Protection Law].
On the following, the articles in question:
WATER CODE Article 56, second clause: “Corresponds to the owners of mining properties, within them, the right to use waters found in their labor, as long as they maintain control of their belongings and to the extent necessary for said exploitation.”
MINING CODE, Article 110, According to the SERNAGEOMIN (National Geology and Mining Service): “The mining concession holder has the right to use waters found in the labor of its concession to the extent that said waters are necessary for exploration, exploitation, and benefit that may be carried out, depending on the type of concession in question. These rights are inseparable from the mining concession and will be extinguished with it.”
Sources:
- Mining Code
- Water Code
- General Water Department, Ministry of Public Works
Highlighted Image:
Tailing Collahuasi / © Consejo Minero de Chile.
