LIABILITY FOR ENVIRONMENTAL DAMAGE IN THE MINING SECTOR

• Jurisdiction: Derecho Internacional

MINING LAW & INVESTMENT IN LATIN AMERICA
(April 2003)
CHAPTER 6B
LIABILITY FOR ENVIRONMENTAL DAMAGE IN THE MINING SECTOR ¹


Javier Vergara Fisher
Partner Urrutia & Cia.
Professor of Environmental Law
Law School — Universidad de Chile

The mining sector and, in general, the Great Mining, is beyond doubt an activity in which the affectation of natural resources is of its essence. Further, the reason for its existence is given by the use of these resources. From this perspective, the enormous affectation of natural resources that the actions of the mining sector produce, proves the necessity to give a special look to the regulations that may exist in each country, with respect to environmental damage. This discussion is of special interest in Chile, at a time when the debate on reparation of environmental damage has been acquiring special relevance, due to the fact that the System that was established in the year 1994 by Law 19.300 has been acquiring a growing importance. This is basically because of the activity that in this last time has been developed by a public institution that has the rightful ownership of the environmental action. This year, the first court of appears judgments have been issued on reparatory trials, and a certain experience has been created that allows us to analyze the different legal systems under the light of such activity.

In order to proceed with this discussion, it seems reasonable to previously analyze our system of extra contractual civil liability for damage, in order to later analyze the main aspects related with the responsibility for environmental damage.

CIVIL RESPONSABILITY IN CHILEAN LAW:

This refers to the obligation that a person has to indemnify the damages that it has caused to another, without the existence of a contractual relationship among them. Civil responsibility is treated in the Chilean Civil Code in articles 2314 to 2334, in title XXXV, regarding the so called Torts and Unintentional Torts ("Delitos y Cuasideltios").

In general terms, our Civil Code, ascribes to the classic criteria of civil responsibility. Thus, it is an essential requirement, the existence of fraud or negligence, on behalf of whom causes the damage. It is important to note that the Chilean Civil Code, or the Code of "Bello", was used, with several amendments, as a referent for different Latin-American countries such as Colombia or Ecuador. Therefore, the other requirements are those that arise from classical theories on the matter, being necessary the existence of damage, causal link between the damage and the fraud or negligent act, and obviously the extra contractual capacity,

It is important to remember that in the United States, where the legal system was developed following the common law tradition, several criteria have been established regarding damage to property caused by environmental problems, thereby developing an important jurisprudence regarding responsibility for environmental damage. The precedents that we know are based on matters such as negligence in aspects derived from neighborly relationships or the lack of information delivered to new owners or mere tenants of the latter. This is how, through the expansion of the torts system, several courts have allowed that inno

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cent owners could be compensated for the damages suffered by pollution problems caused by dangerous materials.²

In this case, through a broader interpretation of the system of civil responsibility, bearing in mind the complex problems of pollution, several protection criteria have been able to be defined for land owners. In this context, it is legitimate to ask oneself if something similar could happen in Chile. In other words, if, under the frame of our classic system of extra contractual civil liability, liability for damages in third party property caused by pollution problems could be made effective.

Requirements of extra contractual liability:

In order to configure extra contractual civil liability, it is necessary for several requirements or hypothesis to concur. These shall be analyzed in order to clarify the most important aspects to determine the possibility of attributing liability for environmental damages. In this sense, this article does not seek to make a complete analysis of all the requirements of extra contractual liability, but only of those which are more relevant, in order to then compare them with the legal provisions of other countries of the region, on liability for environmental damage. We can already say that the criteria is different, and the same happens with the regulations that were proposed last year in the European Union.

We shall also analyze if such regulations are general for all activities and therefore, from such perspective we should look at the mining activity, or on the contrary, special provisions exist for this activity.

Fraudly or negligent action or omission:•

In the Chilean system of liability, the difference between a negligent or fraudly action is not important regarding its effects, as both give birth to extra contractual liability in equal terms. This is why the difference between torts and unintentional torts contained in article 2314 of the Civil Code does not make sense from the perspective of the effects produced by one or the other. This article establishes that "He who has committed a tort or unintentional tort that causes damage to another, is obligated to indemnify;..."

Consequently, notwithstanding if the act has been committed voluntarily and with the intention to damage a third party (fraudly), or in a careless, negligent and unintentional (negligently), both shall grant the affected party the right to claim the same reparation. This is why the legislations of this century have abandoned such distinction³

On the other hand, it is important to note that certain legislations exist, such as the Mexican, where article 1913 of their Civil Code establishes the principle of strict liability, also called objective, with respect to the person who uses dangerous mechanisms, artifacts or substances.⁴

The Argentine legislation has a similar solution. Article 1113 of their Civil Code establishes the presumption of liability for the possessor of a thing that causes risks.⁵ Also, article 45 of Law 24.051 on Danger

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ous Residues establishes that all dangerous residues is a dangerous thing in the terms of the second paragraph of the just mentioned article 1113 of the Argentine Civil Code.

Both legislations, the Mexican and the Argentinean may be applicable to the mining activity, as long as they manage dangerous substances (in the Mexican case) or dangerous substances or residues in accordance with the laws of the Republic of Argentina.

The Proof of Negligence: This is one of the relevant subjects in this environmental matter, because in virtue of what is pointed out in article 1698 of the Civil Code, "the responsibility to prove obligations or their extinction relies on who claims one or the other." Therefore, whoever tries to prove that a third party is obliged to repair such harm, shall prove all the elements that form the responsibility, being negligence one of them. This is why it is up to the person who claims negligence to prove that there is negligence or fraud.

This is the first aspect that may generate difficulty for someone who is convicted to respond from a civil point of view on this matter, for proof of negligence or fraud is something complex, which requires great effort. That might be the reason why civilians do not generally use this course of action to face unexpected environmental problems, but limit to filing the constitutional action of protection ("recurso de protección"), whose purpose is to leave without effect an action that threatens the constitutional guaranties of Living in an Environment Free of Pollution.⁶ Not withstanding the aforementioned, certain special situations related to negligence and fraud must be analyzed with special care and consideration.

Non fulfillment of legal or regulatory provisions: It has been generally established that there is negligence when there is an infraction to legal or regulatory provisions that regulate an activity. For example, in the case of an aquifer exploited without the corresponding water rights, and this produces an effect on the third party's patrimony, it may be clearly understood as a negligent action, given that the provisions on the establishment of water rights were broken. The same happens when the tailing dams of a mining plant are established, without obtaining the authorizations that the legislation demands for this kind of premises, for example by submitting such project to the Evaluation of Environmental Impact System when required. All of this implicates an infraction to legal or regulatory provisions, and necessarily causes supposition of a negligent act and therefore negligent. This way, breaking an obligation determined by laws or regulations makes the proof of negligence or fraud unnecessary.⁷

The aforementioned becomes more complex if it is considered that some of the regulations mentioned have ruled in our country for many years, but many of them have been historically broken. This makes it still very common to find activities that do not comply with the administrative authorizations that our legal framework requires to, for example, unload liquid residues in water courses. Such inobservances

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immediately generate a situation of non fulfillment of certain environmental provisions, which, in case of an event related to such authorization, develop immediately into in a presumption of liability.

This is of special relevance when mining projects that have long life spans are analyzed. It has only been in the last few years that there has been a serious job regulating their administrative permits. It is also important to mention that at least in the last decade and a half this situation has notoriously...