Report No. 29 (2013) IACHR. Petition No. 1288-06 (Chile)

• Report Number: 29
• Petition Number: 1288-06
• Year: 2013
• Alleged Victim: Comunidad indígena Aymara de Chusmiza-Usmagama y sus miembros
• Respondent State: Chile
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility

13

REPORT No. 29/13

PETITION 1288-06

ADMISSIBILITY

AYMARA INDIGENOUS COMMUNITY OF CHUSMIZA-USMAGAMA AND ITS MEMBERS

CHILE¹

M. 20, 2013

I. SUMMARY

1. On November 21, 2006, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) received a complaint filed by the Aymara Indigenous Community of Chusmiza-Usmagama, represented by Mr. Luis Humberto Carvajal Pérez and the Observatorio Ciudadano (hereinafter “the petitioners”)² on behalf of the Aymara Indigenous Community of Chusmiza-Usmagama and its members³ (hereinafter “the Indigenous Community,” “the Community,” or “the alleged victims”), against the Republic of Chile (hereinafter the “C. S.”, “Chile”, or the “S.”). The petitioners initially alleged that the S. had deprived the Community of material possession of and ancestral property rights over the waters of the spring called the S. de Chusmiza. S., they alleged the failure to enforce the 2009 judgment by the Supreme Court of Justice that recognized that the Community did indeed have that right, and the unwarranted delay on the part of the courts in resolving an action for damages filed in 2001 by the Community against the Treasury of Chile and the company Empresa Agua Mineral Chusmiza S.A.I.C.. C., they alleged a failure to make full reparation to the alleged victims for the violation of several rights contained in the American Convention.

2. In their initial petition, the petitioners maintained that the C. S. was responsible for violating the rights enshrined in Articles 21 (right to property), 8 (right to a fair trial), and 25 (right to judicial protection) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) in relation to Articles 1(1) (obligation to respect rights) and 2 (obligation to adopt provisions of domestic law) of that same instrument.

3. In its initial response, the S. alleged that the petition should have been found inadmissible because the petitioners had not exhausted domestic remedies; no facts were alleged or stated that would tend to establish a violation of human rights; and that the IACHR was not competent to act as a court of appeals or a “fourth instance.” S., the S. alleged that, with Supreme Court recognition in 2009 of the Indigenous Community’s right to the waters claimed, the petitioners’ claims had been satisfied. It also argued that the resolution of the petitioners’ action for damages against the Treasury of Chile and the Empresa Agua Mineral Chusmiza S.A.I.C. filed in 2001 was still pending, as was the administrative regularization of the Community’s rights recognized in the 2009 Supreme Court decision. A., the S. reiterated that the petitioners had not exhausted domestic remedies. It maintained that the authorities acted in keeping with the law and the rules of due process, and that they respected the rights of the Indigenous Community.

4. A. analyzing the parties’ positions, and pursuant to the requirements provided for in Articles 46 and 47 of the American Convention, the Commission decides to declare the petition admissible for the purposes of examining the alleged violation of the Indigenous Community’s rights, enshrined in Articles 8, 21, 22, 24, and 25, in conjunction with Articles 1(1) and 2. The Commission also decides to notify both parties of this decision, and to publish it and include it in its Annual R. to the General Assembly of the OAS.

II. PROCEDURE BEFORE THE COMMISSION

5. On November 21, 2006, the Commission received the petition and assigned it number 1288-06. On A. 26, 2007, the Commission forwarded the pertinent parts to the S., asking that it submit its response within two months. T.S. requested two extensions for submitting its response, on May 14, 2007 and J. 27, 2007, which were granted. On November 7, 2007, the IACHR received the S.’s response, which was duly forwarded to the petitioners.

6. The IACHR received observations and additional information from the petitioners on December 7, 2007, J. 11, 2008, October 28, 2008, J. 24, 2010, and September 13, 2011. These communications were duly forwarded to the S.. T.S. submitted observations and additional comments on A. 15, 2008, February 6, 2009, February 26, 2009, and J. 13, 2010.

6. On J. 24, 2010, the petitioners requested a working meeting, which was granted by the IACHR and took place on M. 20, 2010, during the 138^th regular period of sessions of the IACHR. Both parties were present.

III. POSITION OF THE PARTIES

1. Position of the petitioners

6. The petition was initially lodged because the S. had deprived the Aymara Indigenous Community of Chusmiza-Usmagama and their members of the material possession and ancestral property right over the waters of the spring called the S. de Chusmiza, waters that the petitioners argue the Community used since time immemorial for their productive farming and silvo-pastoral activities and for human consumption, as it is the only water resource available in the area. They assert that access to those waters “constitutes the fundamental basis for preserving their habitat, rendering the territory environmentally viable, developing their culture, their spiritual life, and their integrity, and to ensure their economic survival.”

6. The petitioners indicate in their original petition that the Community was deprived of its ancestral waters because in 1996 the S., through the General Bureau of Water (Dirección General de Aguas), by means of a discriminatory, arbitrary, and unlawful procedure, had granted the Community’s water rights to a company. They report that it was not until 2009 that the rights of the Community to its ancestral waters were recognized by rulings of the courts of justice. N., such rights were not recorded by the administrative authority, nor had reparations been made to the Community for the harm caused during the years in which it was deprived of the use of water resources, even though an action was brought against the S. for that purpose in 2001.

6. The petitioners allege that since 1996 the S., through discriminatory, arbitrary, and illegal acts, impeded the Indigenous Community from accessing their waters, which were theirs as a matter of ancestral right. They argue that “the loss of water rights by the community has meant significant changes in the customs and ways of life of the community, and which have translated into displacement of the population and loss of cultural expressions and rites that must be reconstructed.” In this respect, they indicate that during the time they were deprived of the water irreversible harm had occurred to the Community, especially because “the agricultural projects and tourism development projects presented for state subsidies [had been] rejected, these activities being the basis of the community’s economic development. This situation has led to the impoverishment and depopulation of the Aymara town of Chusmiza-Usmagama.”

• F. background presented by the petitioners

6. With respect to the origins of the Aymara Indigenous Community of Chusmiza-Usmagama, the petitioners indicate that the towns of Chusmiza and Usmagama, like all the old towns of the Quebrada de Tarapacá, were part of the Incan structure of the Tawantinsuyu. They argue that after the arrival of the Spaniards, those towns were integrated to the Andean colonial space. They...