Chile’s constitutional rewrite confronts climate change and enshrines water rights

Monserrat Madariaga Gomez De Cuenca, a Chilean environmental lawyer, has been watching her country reinvent itself.

Over the past year, more than 150 elected representatives including a microbiologist and several indigenous leaders have been nutting out a new constitution for their country – the most progressive constitution to be drafted in the midst of the climate emergency.

Nearly 80 percent of Chileans voted in October 2020 to reimagine their country’s governing principles after massive protests erupted a year earlier, denouncing deep social and economic inequities in the country.

Increasing water scarcity was also the product of the country’s extractive mining-led economy, and Chileans finally realised “we are damaging the environment for the benefit of very few,” says Madariaga, now at the University College London. “People [were] saying enough is enough.”

Now, the newly drafted constitution – which Chileans will vote to either accept or reject in a September plebiscite – envisages a fairer future for its citizens.

Principally, it recognises runaway climate change as an ‘ecological and climate crisis’ that can only be addressed through far-reaching policies and laws. It expands environmental protections and vows to safeguard the livelihoods of future generations.

It also states that the Chilean government must guarantee its citizens have access to clean air, water and adequate food. Moreover, the state has a constitutional duty to combat climate change and to conserve the country’s rich biodiversity, vast deserts, windswept oceans, wild forests, wetlands and Patagonian glaciers.

If approved, the proposed constitution would change everything about Chileans’ relationship with nature, says Madariaga.

Chile is one of the world’s top exporters of lithium and copper, and those mining industries have extracted untold amounts of water from a drought-stricken landscape. That water was bought and sold in a wholly privatised water system which will be struck down should the new constitution be approved. Instead, water would become a common good.

“Chile is moving forward with regulatory instruments related to climate change as never before,” Madariaga says.

Already it has passed a new climate change law that binds Chile to carbon neutrality by 2050 and which could see the country set enforceable emissions caps on the mining industry, an effort spearheaded by the newly elected Environment Minister, Maisa Rojas.

Rojas is an atmospheric physicist and one of hundreds of scientists who co-authored the Intergovernmental Panel on Climate Change’s (IPCC) 2021-22 report that, in three instalments, issued a ‘code red for humanity’.

“It’s this moment where you think that everything [which] is not possible when you don’t have the political will, could be possible now,” says Madariaga of the constitution.

The process to rewrite Chile’s constitution has not been without setbacks, though. And yet, the slow and at times bumbling democratic process has yielded a bold vision born out of some of the country’s darkest times, Madariaga says.

Diego Mardones, an astronomer at the University of Chile (who campaigned to be an elected member of the constitutional assembly but was unsuccessful) says this is a truly unique moment in the country’s history, one that he hopes will rewrite the social contract between the Chilean government and its people.

At its core, the proposed constitution recognises principles such as intergenerational equity and just climate action, meaning the Chilean government would have a duty to protect the rights of its youngest citizens, who have contributed least to climate change, to live on a healthy, hospitable planet.

The constitution would also give greater autonomy to local indigenous communities that are fighting against exploitative mining practices on their ancestral lands. “Making those communities more empowered to determine what’s going to happen in their own territories should put a limit to the exploitation of nature,” explains Madariaga.

In total, around 50 of the 499 provisions of the newly drafted constitution concern environmental and climate issues.

“This has been an unprecedented process, because we were able to consider all of the evidence around climate change when crafting the new constitution,” University of Antofagasta microbiologist Cristina Dorador told The Washington Post in July.

Dorador, who has become the leading scientific voice in Chile’s constitutional assembly and in the lead up to the September plebiscite, usually studies extremophiles that live beneath the country’s fragile salt flats.

She, like many other Chileans, hopes Chile’s efforts to rewrite its relationship with nature can serve as an example – not only to other Latin American countries, but also to other nations which have built their economies on extractive industries mining finite resources and which are now facing critical water shortages – to strengthen their own environmental laws.

The future has shimmering hope but the outlook is grim. A 2022 study suggests that even under the quickest emissions reduction trajectory modelled by the IPCC, southwestern South America will face higher odds of brutal and unprecedented droughts over the next 30 years.

“Chile dries up and will continue to dry, [so] we need to address the climate and ecological crisis in a comprehensive, equitable and democratic way,” Dorador tweeted.

More specifically, the draft constitution spells out that the Chilean government is responsible for preventing, adapting and mitigating the risks, vulnerabilities and effects caused by the climate crisis.

“That’s a direct mandate to create law and policy in order to comply with that [constitutional] duty,” Madariaga explains. But the constitution, should it be approved and implemented, would also be a “blooming moment for environmental policy and environmental law” more broadly, she says.

The proposed constitution, which grants rights to nature itself, would give Chileans the legal tools to hold their government and private companies to account, should they breach the people’s right to nature, clean air and water. This includes an ombudsman for nature who would be in charge of defending nature and enforcing its rights, says Marcelo Lozada Gomez, a climate law scholar at the University of Oxford.

Read more: Does nature have rights?

It could also be a moment of huge possibility for scientific research since the constitution adds science to Chilean public education and encourages industry to innovate as the world moves towards a clean energy future, says Mardones.

“It will be a slow process,” he says. “But if we really become, let’s say in 10 years, the country that we are writing about, we would be true worldwide leaders in many, many things.”

But Madariaga says countries like Australia could also learn from Chile and strive for better representation of women and Indigenous peoples. The make-up of the constitutional assembly, which had gender parity in its elected representatives, is “one of the most valuable lessons,” she says.

“That’s a brave act but it’s also smart,” says Bradley Moggridge, a Kamilaroi water scientist and University of Canberra hydrogeologist, of the new Chilean constitution and the diverse constitutional assembly that wrote it.

“Having Indigenous people at the table, [with] their knowledge and their connection to Country, and giving the environment, waterways and groundwater systems the right to exist and be protected, that’s going to benefit human society if [those systems] are healthy.”