A Hermeneutical, Precautionary, and Intercultural-Environmental Proposal for the Environmental Assessment of Investment Projects Impacting Indigenous Communities in Chile

Abstract

A hermeneutic proposal is formulated regarding the regulation of investment projects with effects or potential effects on indigenous communities. This proposal systematizes compliance standards and culturally relevant approaches, in accordance with the human right to a healthy environment and the human right to cultural identity, drawing on sources from international and Inter-American regional levels for the protection of indigenous communities and their environmentally significant territories. Based on this proposal, a critical analysis of Chilean jurisprudence in environmental matters (environmental or constitutional technical competence) is conducted. Then, compliance gaps, whether regulatory or stemming from judicial interpretation, are identified in the protection of indigenous communities against investment projects, according to the standards contained in the proposal. The study focuses on investment projects and their effects on ‘indigenous cultural intangibles’ as legally protected goods in light of the aforementioned human rights. Thus, in section 1), the human right to cultural identity and the human right to a healthy environment are studied; in section 2), the relevant domestic regulatory framework for environmental assessment is reviewed; in section 3), a precautionary environmental and intercultural hermeneutic proposal is formulated; and in section 4), local environmental jurisprudence is critically studied based on the formulated proposal.