El deber de consultar las concesiones y servidumbres mineras: un comentario a la sentencia Rol Nº91-2017 (acumuladas 92-2017 y 93-2017) de la Corte de Apelaciones de Copiapó

Abstract

The sentence issued is analyzed by the Court of Appeals of Copiapó on December 12 is analyzed, 2017, which rejects an allegation of an indigenous community, regarding the applicability of the duty to consult prior to the constitution of a mining easement, ruling that the consultation was not applicable, since both the mining concessions and easements are granted by judicial resolution, which is not a "legislative or administrative measure" as required by art. 6 of ILO Convention 169. This decision, it will be argued, is incorrect because it was based in the general rule of consultation of art. 6 and not in the special rule of art. 15 Nº2 of the same treaty, which is the applicable rule for authorizations of exploration and exploitation activities. The use of this last norm, it would have been decisive for the outcome of the trial, and it would have contributed to the solution of the current phenomenon of "displacement" of substantive controversies by procedural discussions, that occur in the context of the right to consultation.